The People, Respondent,v.Julio Negron, Appellant.BriefN.Y.October 21, 2015APL-2014-00230 Ind. No.398/05 (Queens County) To be argued by: JOEL B. RUDIN (20 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK Respondent, -against- JULIO NEGRON, Defendant-Appellant. OPENING BRIEF FOR DEFENDANT-APPELLANT JOEL B. RUDIN Law Offices of Joel B. Rudin 600 Fifth Avenue, 10th Floor New Yorþ New York 10020 (2r2) 7s2-7600 (Phone) (212) 980-2968 (Fax) E-mail: jbrudin@rudinlaw.com Attorney for Appellant J ulio Negron TABLE OF CONTENTS TABLE OF AUTHORITIES 1 QUESTIONS PRESENTED V JURI SDICTIONAL STATEMENT I PRELIMINARY STATEMENT 2 Introduction. 2 STATEMENT OF FACTS 6 Pre-Trial Proceedings 6 The Trial. 7 Post-Conviction Motions And Investigation. I2 The Appellate Division's Decision. 19 ARGUMENT 2t POINT I COUNSEL'S MULTIPLE INEXCUSABLE FAILURES RENDERED HIS AS SISTANCE CONSTITUTIONALLY rNEFFECTIVE...... ............... 2r The Law Regarding The Right To Effective Assistance Of Counse1......... .......... 2l Counsel Inexcusably Failed To Investigate Negron's Case And To Present Readily-Available Evidence That Negron Did Not Resemble The Perpetrator..... .... 26 Page A. B. Page Trial Counsel Failed To Object To The Court's Use Of The Incorrect Standard For Third-Party- Culpability 8vidence............ 30 Considered Collectively, Counsel's Errors Deprived Negron Of His Right To A Fair Trial ............ 34 POINT II TTIE PEOPLE VIOLATED TT{EIR OBLIGATION UNDER 8R,4DT AND VILARDI TO DISCLOSE EVIDENCE SUPPORTIVE OF NEGRON'S THIRD.PARTY. CULPABILITY DEFENSE............. ..... 35 The Applicable Law Under Brady And Vilardi 35 The People Have Never Disputed That The Vilardi Standard Applies To Negron's Brady Claim; Thus, The Appellate Division Erred In Employing The Federal 'Reasonable Probability' Standard. ................. 38 C The People, Fully Aware That Negron Would Attempt To Defend Himself Through Evidence Of Third-Party Culpability, Violated Brady by Suppressing Evidence Supportive Of That Defense 39 CONCLUSION 44 C D. A. B. TABLE OF AUTHORITIES Cøse Berrymanv. Morton, 100 F.3d 1089 (3d Cir. 1996). Brady v. Maryland, 373 U.S. 83 (1963). Espinal v. Bennetl, 588 F. Supp. 2d 388 (E.D.N.Y. 2008). Eze v. Senkowski,32l F.3d 1 10 (2d Cir. 2003). Kyles v. Whitley,5l4 U.S. 419 (1995) Lekav. Portuondo,257 F.3d 89 (2dCir.2001). Lindstadt v. Keane,239 F.3d I9l (2d Cir. 2001). Miller v. Angliker,848 F.2d l3I2 (2d Cir. 1988) Murray v. Carrier,477 U.S. 478 (1986). Narrod v. Napoli, 7 63 F. Supp. 2d 359 (W.D.N.Y. 20Il) Page 24 6,35 Flores v. Demskie,2l5 F.3d 293 (2d Cir. 2000) 25 Gersten v, Senkowsi,426 F.3d 588 (2d Cir. 2005). 25 Giglio v. United States,4O5 U.S. 150 (1972) 37 Harris v. Reed,894F.2d87l (7th Cir. 1990) 25 Harris v. Senkowski,298 F. Supp. 2d 320 (E.D.N.Y . 2004). 25 Jenkins v. Artuz,294 F .3d 284 (2d Cir. 2002). 37 Kimmelman v. Morrison,477 U.S. 365 (1986). 34 25,30 42-43 36 24 36 22 22 -l- 32 Cøse Padilla v. Kentuclry,559 U.S. 356 (2010) Pavel v. Hollins,26I F.3d 210 (2d Cir. 2001). People v. Aulet, 1 1 1 4.D.2 d 822 (2d Dept. 1985) People v. Baldi,54 N.Y.2d 137 (1981). People v. Bennetl, 29 N.Y.2d 462 (1972). People v. Brown,45 N.Y.2 d 852 ( 1978). People v. Caban,s N.Y.3d 143 (2005). People v. Chavis, 91 N.Y.2d 500 (1998). People v. Colon,l3 N.Y.3d 343 (2009). People v. Crimmins,36 N.Y.2d 230 (1975). People v. Droz,39 N.Y.2d 457 (1976) People v. Fogle,307 A.D.zd299 (2dDept.2003). People v. Garcia, 46 A.D.3d 461 (l st Dept . 2007) People v. Grant, T N.Y.3d 421 (2006). People v. Hobot,84 N.Y.2 d I02l ( 1995). People v. Negron,Il2 A.D.3d 741 (2d Dept. 2013) People v. Novoa,70 N.Y.2 d 490 ( 1987). Page 28 22,25 30 21,34 24 23 22,23 38 36,37 33 37 23,26 25 38-39 33 28 passim -11- 37 Case People v. Oliveras, 21 N.Y.3d339 (2013) 23,24,27-28 People v, Primo,96 N.Y.2d 351 (2001) passim People v. Ramos,146 Misc.2d 168 (Sup. Ct., Bronx Co. 1990)........... 39n People v. Steadman, 82N.Y.2d 1 (1993) Pøge People v. Turner, 5 N.Y.3 d 47 6 (2005) People v. Vega, 27 6 A.D.2d 414 ( I st Dept. 2000) People v. Vilardi, 76 N.Y.zd 67 (1990) People v. Williams, 56 N.Y.2d 236 (1982) Smithv. Cain,132 S.Ct. 627 (2012). Strickland v. Washington,466 U.S. 668 (1984) Strickler v. Greene,527 U.S. 263 (1999) Suv, Filion,335 F.3d II9 (2dCir.2003) Tomlin v. Meyers, 30 F.3d 1235 (9th Cir. 1994) United States v. Agurs,427 U.5.97 (1976) United States v. Bagley,473 U.S. 667 (1984) Wiggins v. Smith,539 U.S. 510 (2003) Williams v. Taylor, 529 U.S. 362 (2000). Williams v. Washington,59 F.3d 673 (7th Cir. 1995). 26 17,36,39n 37 28 33 35-36 passtm 35 37 24 6,36 35 25 25,30 -111- 25 C onstitutíon and Statutory Provisions United States Constitution Sixth Amendment. Fourteenth Amendment. New York State Constitution Article I, Section 6. New York Civil Practice Law and Rules Pøge Rule 2221 2t 2t 2T 13, 15 -lV- QUESTIONS PRESENTED I. Whether Defendant-Appellant's Julio Negron CPL $ 440.10 motion, alleging ineffective assistance of counsel, should have been granted where the evidence was uncontested that trial counsel: Failed to introduce credible evidence from numerous sources that would have proven Negron did not resemble the description of the perpetrator given by eyewitnesses to the crime; and Failed to object to the trial court's erroneous use of the overly stringent "clear link" standard for the introduction of third- party-culpability evidence, where the Court of Appeals had ovem¡led that standard four years earlier in favor of the same balancing test that applies to the admission of all relevant evidence? il. Whether the Appellate Division erred in declining to apply this Court's "reasonable-possibility-of-a-more-favorable-outcome" materiality test for Brady violations under People v. Vilardi, 76 N.Y.2d 67 (1990), where the People did not dispute, either in the hearing court or on appeal, the applicability of that standard, and under that standard, the People's failure to disclose additional third- party culpability evidence was material to the trial's outcome? A. B -v- COURT OF APPEALS:rï:::yYr:i .....x TI{E PEOPLE OF THE STATE OF NEW YORK, Appellee, against- JULIO NEGRON, Defendant-Appellant. Ind. No. 398/05 (Queens County) APL-2014-00230 OPENING BRIEF FOR DEFENDANT.APPELLANT JURISDICTIONAL STATEMENT This is an appeal from the decision and order of the Appellate Divisron, Second Judicial Department, dated December 11, 2013, affirming the denial of Defendant-Appellant Julio Negron's motion to vacate his conviction, pursuant to Criminal Procedure Law $ 440.10, due to ineffective assistance of trial counsel and Brady violations. This Court has jurisdiction to review such an order pursuant to CPL $ 450.90(l). A Judge of this Court, the Honorable Robert S. Smith, granted leave to appeal. See People v. Negron, 23 N.Y.3d 1065 (2014) Negron was convicted on March 27,2006, after ajury trial in the Supreme Court, Queens County, before Justice Gregory Lasak, of attempted murder in the second degree, assault in the first degree, reckless endangerment in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. He received an aggregate sentence of 12years, which he is presently serving at Green Haven Correctional Facility in Stormville, New York. Negron's present 440.10 motion was denied by Justice Lasak, without a hearing, on September 26,2012. Undersigned counsel was assignedpro bono to represent Negron by United States District Judge Dora L.Ir,izarry, Eastern District of New York, in connection with a habeas corpus petition that Negron had fiIedpro se. That petition is now stayed so that Negron can pursue his state remedies with regard to several of his federal issues. Undersigned counsel agreed to continue to represent Negron in the state courts. PRELIMINARY STATEMENT Introduction A trial is supposed to be a search for the truth, with the accused permitted to defend himself against the awesome power of the state. But not in this case. The prosecutor successfully opposed Julio Negron's request to present evidence that someone else committed the crime, while holding back significant proof that 2 would have supported Negron's motion and sitting back passively while the trial court applied the wrong, and a far too stringent, threshold standard. As a result, the jury never heard that Negron's neighbor in their three-apartment building looked more like the shooter than Negron did, that the neighbor fled in a panic when police approached their building, that he threw away a cache of weapons and ammunition, and that some of this ammunition matched the caliber of the bullets that had been used in the shooting, outside the building, that the police were investigating. Meanwhile, Negron not only was victimizedby a Brady-violating prosecutor, but also by a negligent defense counsel. His lawyer also did not object to the court's employment of the wrong third-party-culpability standard, and he also failed his basic responsibility to interview nearly a dozen witnesses who could have helped Negron prove that his appeatartce at the time of the shooting did not match the description of the perpetrator provided by eyewitnesses This was a one-witness identification case involving the shooting and wounding of a motorist, Mervin Fevrier, during the early morning hours of February 6,2005, following a"roadrage" incident. Fevrier, who was shot in the hip, was unable to positively identif,'Negron as the shooter during a police- arranged lineup, but then did so after spending 15 minutes huddling with two police detectives and an assistant district attorney in a back room. This lineup a J identification was suppressed, but Fevrier was pennitted to make an in-court identification. He was the only witness to do so. Another witness testified she told police during a show-up that Negron was definitely not the shooter. Two additional eyewitnesses'who saw Negron during lineups identified fillers, and also did not identiff him at trial. Besides Fevrier's identification, the only incriminating evidence against Negron was the testimony of three witnesses who, although unable to identiff Negron, "identified" his car. They admittedly left the scene of the shooting, gave descriptions of the shooter's vehicle that did not match Negron's car, and did not point out Negron's parked automobile until they retumed 15 minutes later. Negron, supported by two alibi witnesses, testif,red that he parked the car there after returning from a nightclub, and was not involved at all in the incident, but the jury convicted him anyway. The 440 motion that is the subject of this appeal alleges that the conviction is tainted by the ineffectiveness of Negron's trial attorney and the People's Brady violations Negron alleges that his trial attorney was ineffective, f,rrst, because he failed to interview, or to present testimony by, eleven potential defense witnesses who would have confirmed Negron's testimony that he did not wear facial hair at the time of the crime, whereas two of the eyewitnesses believed the perpetrator wore a 4 mustache. He also failed to introduce into evidence Negron's arrest photograph, which showed him to be clean shaven. Second, trial counsel, while proffering a third-party-culpability defense, inexcusably failed to object to the trial court's application, as a basis for precluding such evidence, of the overly stringent "clear-link" standard that this Court had overruled in People v. Primo,96 N.Y.2d 351, 355 (2001). Under the correct standard, the trial court would have been able to exercise his discretion to permit Negron's third-party-culpability evidence to go to the jury. Meanwhile, the People, while successfully objecting to Negron's application to present third-party-culpability evidence as factually deficient, violated their Brady obligations by failing to disclose strong additional evidence pointing to the possible guilt of the alternative suspect. This suspect lived in the same three-apartment building, into which the perpetrator fled, as Negron, and looked more like the description of the perpetrator than Negron did. The People failed to disclose that, when police approached the building to search Negron's apartment, the alternative suspect, apparently thinking police were there for him, panicked and fled to the next building while carrying a cache of weapons, including ammunition that matched the bullets used in the shooting. The People's failure to disclose this evidence deprived Negron of his right to present it as 5 further reason to permit his third-party-culpability defense. Ineffectiveness assistance of counsel and Brady violations - this is the stuff from which false convictions are made. Victimized by both, Negron did not receive afair trial. Now that he has served nine years of his twelve-year sentence, it is time that he receive the fair trial that he should have received in the first place. STATEMENT OF FACTS Pre-Trial Proceedings On February 6,2005, Mervin Fevrier was shot in the hip following an altercation with another motorist in the Ridgewood section of Queens. The next day, police arrested Negron for Fevrier's shooting after Fevrier identified Negron in a lineup. Negron was indicted on March 3,2005. On March 29,2005, Negron's attorney moved, as part of an omnibus pretrial motion, for disclosure by the District Attorney of all evidence favorable to the defendant pursuant to Brady v. Maryland,373 U.S. 83 (1963), and United States v. Agurs,427 IJ.S.97 (1976). A-87-88.1 In their reply, the People disclosed that an eyewitness had stated at a show-up that Negron was not the perpetrator, that they were aware of no other Brady material, but that they would supplement their disclosure should any additional Brady material become known 'All citations are to Defendant-Appellant's Appendix. 6 A-I07 , 1 1 1. The court's ruling reminded the People of their continuing obligation under Brady. A-115. The Supreme Court (Grosso, J.S.C.) conducted aWade hearing onJuly 29, 2005. Detective Robert Moscosco testified that, on February 7,2005, Negron appeared at a lineup at the 104th Precinct. A-334-36,1067-68. Police officers sat as the fillers. A-343. Fevrier initially was unable to identifo Negron as the shooter. A-341. Detective Moscosco, another detective, and an ADA then pulled Fevrier into a room for a closed-door meetingthat lasted 15 minutes. A-34I-42. Moscosco took no notes. A-342-43. Emerging from this meeting, Fevrier viewed the lineup again and this time identified Negron. 1d. "Troubled" by this potentially suggestive process, as well as by the detective's use of fillers who were "clearly police off,rcers" and who did not resemble Negron, the court suppressed the out-oÊcourt identification. A-402-04. However, a different judge (Buchter, J.S.C.), following an "independent source" hearing, ruled that Fevrier could make an in-court identification. A-439-40 The Trial No forensic or ballistic evidence connected Negron to the shooting. Thus, it was the identification evidence that would determine the trial Fevrier testif,red tha|, at about 4 a.m. on February 6,2005, he was driving 7 along Woodward Avenue in Queens when he noticed another driver backing his car down the same street, apparently trying to pull into a parking spot. A-618-21 As Fevrier maneuvered his car around the other vehicle, he and the other driver began to argue through their car windows. A-622-23. Fevrier drove through the next intersection, but pulled over when he noticed the other driver standing next to his car, yelling. A-625. Fevrier and his friend, Eliot Miley, got out of Fevrier's car. Id. Fevner began walking towards the other driver as the two continued arguing. A-626. The other driver suddenly retrieved a gun from his car, pointed it at Fevrier, and began shooting. A-629-33. Fevrier and Miley ran, jumped into Fevrier's car, and fled the scene to look for help. A-633-34,636-37,752. Three witnesses - Andriy Vintonyak, Zoryana Ivaniv, and Dmitriy Khavko - saw the crime from Khavko's parked car. A-474-75,479-80,525-26,543-44 They saw the assailant walk past them and into a white apartment building, at . A-483, 501 -02, 528, 547. Miley initially told police that, although he was unable to describe the make or model of the perpetrator's car, it was a four-door sedan. A-750-51,772-73. Fevrier also initially described the shooter's car as a four-door. A-649-51. When Miley returned to the scene of the shooting, he identified a parked vehicle as that 8 of the perpetrator, even though it was only a two-door coupe. A-598, 753. Police ran the car's license plate and found it belonged to Negron, who lived in one of the three apartments at . A-588-90 As for the other three witnesses who had been in Khavko's parked car, Ivaniv got out and walked to her nearby apartment. A-508. Khavko and Vintonyak drove to Vintonyak's house, but retumed to the scene 15 minutes later "due to curiosity." A-509-1 l. Khavko and Vintonyak also identif,red the car parked near as the vehicle they thought the perpetrator had used. A-487, 552-53. Several hours after the shooting, Negron voluntarily accompanied the police to the 104th Precinct and consented to the search of his vehicle and his apartment. A-698-99 ,702-05. The police found no weapon or other relevant evidence in either place. A-701, 709. Significantly, Miley testified that the perpetrator had a beard and a mustache. A-771. Miley had two excellent chances to observe the shooter: first, through his car's open window, from a distance of one foot, when Fevrier, before the shooting, drove his car slowly drove past the shooter's, A-764-65,772,2 and 2Fevrier testified his car took approximately Il-I2 seconds to pass the shooter's vehicle. A-652-53. 9 second, from across the street just before the shooter opened fire, A-75 l-52. He further stated that the shooter wore dark pants, a dark, plain sweatshirt, and a black, wool cap. A-770-71. Ivaniv and Khavko testified that the shooter had a black bandana on his head, A-529,550, and Khavko recalled a green jacket without writing on it. A-550, 566. The police recovered no such clothing from Negron, his car, or his apartment. Only Fevrier identified Negron as the perpetrator. A-623-24. Khavko and Mileypicked afiller out of a lineup containingNegron.3 A-555-57,761-62 Khavko testified that he selected the filler because he "lookfed] like" the shooter. A-556-57.4 Both Ivaniv and Khavko testified that they did not recognize the shooter in the courtroom. A-530, 550. Indeed, when Ivaniv viewed Negron during a show-up, she told police that Negron was not the shooter. A-533 Before the close of the People's evidence, Negron's counsel asked the court for permission to introduce evidence that a third pafty, Fernando Caban, committed the shooting. In support of his motion, defense counsel argued that Caban looked similar to Negron, lived at the same address - a small, multi-family 3Khavko chose filler 1. Miley chose filler2. A-555-56, 761-62. aSignificantly, this filler had facial hair, but defense counsel never pointed that out to the jury. See p. 17, infra. 10 unit of only three floors - and was affested for possession of a cache of weapons the evening after the shooting. A-737-39,741-42. The court denied the request, employing the stringent "clear-link" standard that this Court had ovemrled four years before in People v. Primo,96 N.Y.2d 351, 355 (200I). A-74I. Defense counsel did not object to the court's reliance on the improper, more stringent standard. A-741-42 Negron testified on his own behalf. Besides denying the crime, he stated that he was clean shaven on the night in question. A-875. However, defense counsel adduced no further evidence corroborating this testimony, which contradicted Miley's description of the shooter. He did not ask either of the other two defense witnesses, Manuel Santiago and Edwin Mendez, whether Negron was clean shaven. They did testifi they were with Negron before the shooting and that he wore a jacket with a Ground Zero recovery patch, blue jeans, and a Yankees hat (which contradicted the People's eyewitnesses' description of how the shooter was dressed). A-784, 788, 825-26. In rebuttal, the prosecutor introduced Negron's driver's license - containing an eight-year-old photo of Negron with facial hair - to contradict Negron's 11 testimony that at the time of the crime he was clean shaven. A-875-76.5 Defense counsel introduced nothing to rebut this outdated and misleading evidence. On March 27,2006, the jury convicted Negron on all counts. A-1061-62 On direct appeal, Negron argued ineffective assistance, although on different grounds than in Negron's present motion and appeal. The Appellate Division affirmed. 41 A.D.3d 865 (2d Dept. 2007),lv to app. den.,9 N.Y.3d 924 (2007). Post-Conviction Motions And Investigation On December 1 ,2008, Negron filed a CPL $ 440.10 motion pro se. The motion alleged, in pertinenTpart, that trial counsel had been ineffective for failing to present witnesses who would have testified that Negron - contrary to the appearance of the actual perpetrator - was clean shaven at the time of the shooting. In support of this claim, Negron submitted sworn statements from eleven individuals who asserted that defense counsel had not interviewed them, but they would have testified that Negron did not wear facial hair, including at the time of the shooting. A-119-30. Negron, in his own aff,rdavit, swore that he had given these names to his attorney. A-25-26. tThe Appellate Division, in its opinion affirming the Supreme Court's denial of Negron's instant 440.10 motion, wrote that the photo of Negron from his driver license was "from 2004." 112 A.D.3d 741,742 (2013). This is incorrect. While Negron's license was issued in2004,the photograph in it was taken in approximately 1998. A-816-78. l2 On February 24,2009, the People responded, contending that Negron's ineffectiveness claim was meritless because trial counsel had a coherent strategy to show Fevrier misidentified Negron as the shooter. A-281 . On March 16,2009, Negron, from prison, mailed his pro se reply. A-26 On March 17,2009, obviously without waiting for any reply that Negron might wish to submit, the court summarily denied his motion. Its decision incorrectly asserted that Negron had failed to support his allegation about counsel's ineffectiveness with "factual recitation or affidavit or other evidence." A-134. The court also found, based on representations by the prosecution, that the People had disclosed to the defense prior to trial a photograph of Caban (which showed him to have facial hair). A-134,136 On April 30,2009, citing CPLR 222L, Negron filed a motion to renew his 440 motion. Negron based his renewal motion on, among other things, the court's failure to consider his reply and its effoneous finding that Negron had not submitted any affidavits in support of his original motion. A-138-39. The court neither acknowledged nor addressed Negron's renewal motion. On September 70,2009, the Appellate Division denied leave to appeal the underlying 440 decision. A-27. On September 15,2009, still actingpro se, Negron filed a federal 13 habeas corpus petition. It was assigned to the Honorable Dora L.Irizarry, United States District Judge, Eastern District of New York. A-18, 27. lnpertinent part, Negron alleged that his trial counsel had been ineffective for failing to call additional witnesses to support Negron's misidentification defense and for failing to more fully support Negron's proposed third-party-culpability defense with additional evidence, including photographs of Negron and Caban showing that Caban, nol Negron, resembled the eyewitnesses' description of the perpetrator. V/hile the petition was pending, on July 16,2010, Negron received a response to a FOIL request he had filed seeking information about Caban's case. The documents included a sworn aff,rrmation, submitted in the Caban prosecution by the same ADA who prosecuted Negron, stating that .45 caliber ammunition - the same type of ammunition used in the shooting of Fevrier - had been found with Caban's weapons cache. A-146. Defense counsel was not aware of this fact at the time of his third-party-culpability proffer. A-62. The ADA's affirmation also described how Caban had frantically disposed of his cache of weapons - including the .45 caliber ammunition - by forcibly entering an apartment in a neighboring building, instructing residents to lock the front door, running up the stairs to the roof exit, and then escaping off the roof, after which police found the weapons and contraband that were later charged to Caban. A-142. 14 An additional document provided with the D.A.'s FOIL response made even clearer the connection between Caban's guilty behavior and the crime with which Negron was charged. The document was a transcript of a Mapp hearing in Caban's case held November 3,2005 - five months before Negron's trial. The Mapp hearing also was conducted by the same ADA who prosecuted Negron. The transcript included the prosecutor's representation thatCaban's frantic disposal of the weapons and contraband coincided with the arrival of police at his residence (to search Negron's apartment), that Caban and Monica Guartan, a co-defendant, ran into an apartment and out onto the roof, and that Caban subsequently escaped from the roof. A-159-65. The transcript also contained a detective's testimony identiffing several of the officers present and one of the witnesses who saw Caban's behavior. Id. Neither Negron nor his attorney knew of these documents or of the underlying information at the time of Negron's trial. A-69-70,61-62. On January 27,2011, Negron filed another CPLR 2221motion based upon the above disclosure. He alleged that the People's failure to disclose the information regarding Caban's frantic disposal of his weaponry, and that Caban's weapons cache included .45 caliber ammunition, had violated Brady. A-264-65 The court did not rule on this, or Negron's previous, applications. A-29. On March 30,201 l, Judge Irizarry asked the undersigned to serve as pro 15 bono counsel for Negron. A-29-30. Judgelrizarry stayed federal proceedings so that Negron could fully exhaust his state remedies. A-18. Based upon a review of the entire record of the case, undersigned counsel filed the present motion pursuant to CPL $ 440.10 or, in the alternative, as a renewal of his previous, undecided motions, pursuant to CPLR 2221. A-14. The motion also contended that the affidavits of defense trial witnesses Edwin Mendez and Manuel Santiago, all included with the submission, had not been previously available to Negron. A-29-31. In addition, Negron submitted an affirmation from his trial attorney, James'W. Kirshner, that contained the following information: a) Kirshner relied on the People's representation that they would disclose alI Brady material, and did not make fuither investigation of the circumstances of Caban's arrest and prosecution; b) He did not receive, or know about, the evidence of Caban's guilty behavior, disclosed in2010 in response to Negron's pro se FOIL request, and the evidence that Caban had possessed the same type of ammunition that was used in the shooting; c) He did not object to the court's use of the incorrect third-party- culpability standard because he had not researched, and was unaware of, the correct law; d) He had no strategic reason for not introducing photographic evidence - the mug shots of Caban and Negron - to show their similar appearance, and to show that Caban more closely resembled the description of the shooter than Negron did, in support o f the third-party- culpabil ity pro ffer; 16 e) He had no strategic reason for not asking defense witnesses Mendez and Santiago, during their trial testimony, about Negron's lack of facial hair - it was an oversight; Due to oversight, he did not try to contact other witnesses, whose names Negron had provided, to corroborate that Negron lacked facial hair at the time of the crime; g) He had no strategic reason for not introducing the mug shot or using the lineup photos showing that, atthe time of his arrest, Negron had no facial hair; and h) For no strategic reason, he failed to argue that People's witness Khavko's choice of filler #1, who had a mustache, corroborated People's witness Miley's description of the perpetrator as having a mustache, and distinguished the perpetrator from Negron, who did not. A-6t-64. In response, the People did not dispute any of the facts underlying Negron's ineffectiveness claim. A-301-07. The People also did not deny that they failed to disclose the evidence of Caban's guilty behavior and that his weapons cache included .45 caliber ammunition. A-290-97. Rather, they disagreed with Negron's conclusion that defense counsel had been ineffective, A-299, and contended that the evidence they had failed to disclose was insufficiently material under the Vilardi standard, A-287-88 On September 26,2012, Justice Lasak, once again without affording any hearing, denied Negron's motion. A-7. Addressing Negron's Brady claim, the Ð t7 court noted (the People had not disputed this point) that Negron's conviction had to be vacated if there were a "reasonable possibility" that the disclosure of the information about Caban would have affected the outcome of Negron's case. A- 10 (citing People v. Vilardi, 76 N.Y.2 d67 (Igg0)). Although the People had not disputed that they did not inform Negron that the police had found .45 caliber ammunition in Caban's cache of weapons, the court made a "finding" that the People's Rosario disclosure included a property voucher indicating .45 caliber ammunition was recovered from Caban on February 7 , 2005. A- 1 1 . The court's "finding" in this regard has no support in the record, and it is unclear from the court's decision where the court supposedly found this document.6 The court went on to find that the undisclosed information regarding the .45 caliber ammunition found in Caban's weapons cache and his frantic disposal of his weaponry before his arrest "does not fall within the rule enunciatedin Brady, as it could not be considered either exculpatory or material." A-10. The court provided no further explanation for this conclusion. The court also denied Negron's ineffective-assistance claim after concluding, without elaboration, that 6lndeed, at oral argument on Negron's application for leave to appeal before Judge Smith, the People candidly acknowledged that, in reviewing the record and their file on Negron's case, they were unable to find any evidence they had disclosed the property voucher before Negron's trial. 18 Negron had "failed to demonstrate prejudice under the New York State test for ineffective assistance ... and has failed to provide any objective evidence to support his claims under Federal Law." A-13. The court made no attempt to explain this conclusion in the face of counsel's admitted failure to interview prospective exculpatory witnesses, present evidence that Negron did not resemble the perpetrator, and argue the proper standard for third-party-guilt evidence Despite his explicit citation attrial to the "clear link" test, Justice Lasak claimed that in actuality he had used the correct standard under People v. Primo. A-11 The Annellate Division's I)ecision The Appellate Division affirmed the denial of Negron's instant 440 motion See People v. Negron, Tl2 A.D.3d74I (2d Dept. 2013). The court found Negron's counsel was not ineffective for failing to object to the court's use of the "clear link" standard because the evidence of Caban's guilt was "of slight, remote, or conjectural significance, and ... not sufficiently probative to outweigh the countervailing risks of trial delay, undue prejudice, confusing the issues, or misleading the jury." Id. at743. It did not explain how the excluded evidence would have caused any such effects Regarding Negron's additional ineffectiveness claims, the court concluded, without explanation, that defense counsel's representation was meaningful "as a 19 whole" and that there was no "reasonable probability" that the evidence counsel had failed to investigate or present would have affected the trial's outcome. 1d As for Negron's Brady claim, the court found that the .45 caliber ammunition in Caban's weapons cache was "not exculpatory" because the ammunition was not "conclusively" linked to the ballistics evidence police found at the scene of Fevrier's shooting, or to any of Caban's weapons. Id. at744. The court also found that Caban's frantic behavior when the police arrived to execute a search warrant on Negron's apartment "showed only consciousness of guilt as to the possession of illegal guns and other contraband." Id. Even though the People had not contested, and the lower court had found, that Vilardi's "reasonable possibility" materiality standard applied to Negron's Brady claim, the Appellate Division inexplicably employed the federal "reasonable probability" standard in evaluating the prejudice Negron had suffered. Id. 20 ARGUMENT POINT I COUNSEL'S MULTIPLE INEXCUSABLE F'AILURES RENDERED HIS ASSISTANCE CONSTITUTIONALLY INEFFECTIVE In his instant 440.10 motion, Negron set forth compelling evidence that his trial attorney failed to interview essential witnesses and thus to adequately prepare for trial, and then committed numerous effors that sabotaged Negron's mistaken- identity defense and his related contention that the crime was committed by his neighbor. The Appellate Division's conclusory decision did not consider any of Negron's specific arguments, either as to the def,rciencies of counsel's representation or the prejudice his negligence caused his client. Counsel's failure to prepare and his trial errors, considered individually as well as cumulatively, deprived Negron of his State and Federal Constitutional rights to effective counsel and to a fair trial. His conviction should be vacated A. The Law Regarding The Right To Effective Assistance Of Counsel Under the United States and New York State Constitutions, a criminal defendant is entitled to "effective" or "meaningful" representation. See U.S. CoNsr. amends. VI, XIV; N.Y. CoNsr. art.l, $ 6; see also Strickland v Washington,466 U.S. 668 (198a); People v. Baldi,54 N.Y.2d 137 (1981). 21 Under the federal test, a defendant is deprived of this right when counsel's performance falls below a reasonable level of professional competence and prejudices the defendant. See Strickland,466 U.S. at 692. "Prejudice" is defined as a "reasonable probability that, but for counsel's unprofessional elrors, the result of the proceeding would have been different." Id. The defendant "need not show that counsel's deficient conduct more likely than not altered the outcome of the case." Id. at 693. A "reasonable probability" is less than a preponderance of the evidence and need not be "more likely than not"; it is "a probability sufficient to undermine conf,rdence in the outcome." Id. at 694. Ineffective assistance may be premised upon a single error that, regardless of the balance of the representation, is "sufficiently egregious and prejudicial" to compromise the defendant's right to a fair trial. Murray v. Carrier, 477 U.S. 478, 496 (1986) (citations omitted); People v. Caban, 5 N.Y.3d 143,152 (2005) (citations omitted); see also Espinal v. Bennetl, 588 F. Supp. 2d 388, 401 (E.D.N.Y. 2008) (counsel ineffective for failing to properly investigate potential alibi defense, despite counsel's "vigorous" representation of defendant). Where defense counsel has made several elrors, analysis as to whether his performance was unreasonable and prejudice occurred is cumulative. See Pavel v. Hollins,26I F .3d 210, 216 (2d Cir. 200 1). 22 New York's constitution "offers greater protection than the federal test." Caban,s N.Y.3d at 156. Under New York law, a criminal defendant is guaranteed "meaningful representation" - a standard that does not require the defendant to fully satisff the Stricklandprejtdice prong. Id. Thus, prejudice is but one factor in assessing counsel's representation. Id. "[E]ven in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial." Id.; see also People v. Brown,45 N.Y.2d852,853 (1978) (reversal even though the evidence of guilt was "overwhelming" because "defendant was entitled to afair trial represented by effective counsel") (citations omitted). This Court repeatedly has made clear that "the attorney's investigation of the law, the facts, and the issues" relevant to the case is "fe]ssential to any representation, and to the attorney's consideration of the best course of action on behalf of the client." People v. Oliveras, 21 N.Y.3d339,346 (2013) (citing Strickland,466 U.S. at 690-91). "[I]t is elementary that the right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense." People v. Droz,39 N.Y.2 d 457 , 462 (1976) (citation omitted). Indeed, because "[a]n attorney's strategy is shaped in significantpart by the results of the 23 investigation stage of the representation," Oliveras,21 N.Y.3d at346, the right to counsel entitles a defendant "to have counsel conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed." People v. Bennetl, 29 N.Y.2d 462,466 (1972) (internal quotations and citation omitted); see also Strickland, 466 U.S. at 691 (counsel must "make reasonable investigations" or "make a reasonable decision that makes particular investigations unnecessary"). Where counsel has failed to conduct an investigation that would have led to evidence favorable to the defendant, ineffectiveness will be made out. See Lindstadt v. Keøne,239 F.3d I91,200-02 (2d Cir.2001) (counsel ineffective for failing to investigate evidence that defendant could not have committed the crime at the time alleged). Additionally, it constitutes ineffective assistance to fail to utilize available evidence that contradicts or undermines an eyewitness identification where such testimony is the primary evidence connecting the defendant to the crime. See, e.g., Berryman v. Morton, 100 F.3d 1089, 1097 (3d Cir. 1996) (defense counsel ineffective for failing to challenge victim's description of assailant with prior inconsistent testimony); Tomlin v. Meyers,30 F.3d 1235, 1238 (9th Cir. 1994) (where the case "hinges on an eyewitness's testimony ... it's difficult to assume that a reasonable tactical decision was made not to challenge that testimony"); 24 Harris v. Reed, 894 F .2d 871 , 878 (7th Cir. 1990) (counsel ineffective for failing to call witnesses to contradict eyewitness identification of defendant); Harris v. Senkowski,298 F. Supp. 2d320,337 (E.D.N.Y. 2004) (finding "inexcusable" defense counsel's failure to cross-examine victim with prior inconsistent description of her attacker). While truly "strategic choices" by counsel are "virtually unchallengeable," the phrase only applies to decisions "made after thorough investigation of law and facts relevant to plausible options." Strickland,466 U.S. at 690. That is, "strategy" is "conscious, reasonably informed" decision making "with an eye to benefitting" the client. Pavel,26l F .3d at 278. "[W]e judge the reasonableness of the purported 'strategic decision' on the part of defense counsel 'in terms of the adequacy of the investigations supporting' it." Gersten v. Senkowsi,426 F.3d 588, 609 (2d Cir. 2005) (quoting Wiggins v. Smith,539 U.S. 510,521 (2003)). Relatedly, a failure by counsel that is based upon a legal misunderstanding, Williams v. Taylor, 529 U.S. 362,395 (2000), "mistaken beliefs ," Kimmelman v Morrison,477 U.S. 365, 385 (1986), "misunderstanding," Flores v. Demskie,2I5 F.3d 293,304 (2dCir.2000), or "ignoranee," Wílliams v. Washington,59F.3d 673,680 (7th Cir. 1995), is not "strategic." Counsel's error cannot be "rationalized away," People v. Fogle, 307 A.D.2d 299,301 (2d Dept. 2003), when 25 B. it results from a "misapprehension of the law," People v. Vega,276 A.D.2d 414, 414 (lst Dept. 2000). See qlso Droz,39 N.Y.2d at 462 ("elementary" that effective counsel must review the law "relevant to the defense"). Counsel fnexcusably Failed To Investigate Negron's Case And To Present Readily-Available Evidence That Negron Did Not Resemble The Pernetrator Before trial, defense counsel knew Negron's defense would be it wasn't him, but someone else. To develop reasonable doubt about the identity issue, Negron obviously needed to undercut the victim Fevrier's identification. One way to do so was to show that Negron did not fit the description given by the various other eyewitnesses. Negron gave counsel the means to do so by testifuing he was clean shaven even though the perpetrator had facial hair and by providing his attorney the names of a dozen witnesses who would corroborate his testimony. Counsel's failure to even interview these witnesses, let alone present any such testimony, plainly was ineffective. Indeed, not only did he fail to present any such testimony from the additional witnesses his client had told him about and whom he failed to interview; he also inexplicably failed to elicit such testimony from the two alibi witnesses he did call to testiff. Further, he failed to introduce Negron's arrest photo showing him clean shaven, even after the prosecutor introduced an eight-year-old photo of Negron showing him with facial hair and thereby misled 26 the jury about his appearance at the time of the crime. Finally, counsel also erred in failing to point out to the jury that the lineup filler, whom eyewitness Khavko had identified because he "look[ed] like" the shooter, A-556-57,had a mustache. These errors, counsel conceded in his uncontradicted affidavit, were due to negligence and had no strategic purpose. While the Appellate Division found, without explanation, that Negron received effective assistance "as a whole," 112 A.D.3d at743, it did not discuss how counsel's specific errors, including his lack of preparation and his omissions attrial, were reasonable. Just because all of counsel's conduct was not negligent, just because counsel did do something to develop a defense attrial, does not excuse his specific, unreasonable failures. The "as a whole" standard the Appellate Division applied under State law cannot swallow up the federal test, under which specific deficiencies are analyzed for "reasonableness" and prejudice. This Court's recent decision in Oliveras demonstrates this principle. In Oliveras,the People's case against the defendant consisted primarily of inculpatory statements the defendant made to police after his arrest. 21 N.Y.3dat 341-42. Defense counsel thereafter "sought to build a defense based on defendant's mental weakness undermining the voluntariness of his admissions of guilt." Id. at347. However, defense counsel pursued this line of defense without 27 first obtaining and reviewing his client's medical records. Id. Because defense counsel's failure to fully investigate the case prevented the defendant from obtaining "valuable information to assist counsel in developing a strategy during the pretrial investigation phrase of the criminal case," the defendant's counsel was ineffective as a matter of law under the New York State Constitution, notwithstanding that he did otherwise try to develop his client's defense. Id. See als o P eople v. Turner, 5 N.Y .3 d 47 6, 4 8 0 (200 5 ) (recognizing that " a single failing in an otherwise competent performance," if sufficiently prejudicial, "deprivefs] a defendant of his constitutional right" to effective assistance) (citing People v. Hobot,84 N.Y.2 d 1021 (1995)) The Appellate Division also rejected Negron's ineffectiveness claim based upon its bare conclusion that "[Negron] failed to establish that there is a reasonable probability that the introduction of fthe additional evidence of Negron's clean-shaven appearance and the shooter's facial hair] would have affected the outcome of the trial." I12 A.D.3d at 743 (citing Padilla v. Kentuclry, 559 U.S. 356 (2010)). However, this conclusion cannot withstand the analysis that the court omitted from its opinion. The case against Negron was weak. Evidence supporting his identity defense likely would have made a difference. The only eyewitness who identified Negron in court the victim Fevrier, was 28 unable to positively identify him at a lineup and did so only after coaching from the detectives and the prosecutor in a back room. Fevrier's in-court identification was contradicted by eyewitness Ivaniv's statement to police, after viewing Negron in a show-up, that he was not the perpetrator, A-533', and by the testimony of two more witnesses who viewed lineups and picked out f,rllers, not Negron, A-555-56, 761-62. It was fuither contradicted by Negron's testimony on his own behalf, and by his alibi witnesses, who also gave descriptions of what Negron was wearing that night that contradicted the eyewitnesses' descriptions of the shooter's clothing. A-784,788,825-26. While three People's witnesses pointed out a vehicle that belonged to Negron, they did so after giving descriptions that did not match the vehicle's actual appearance, and after leaving the scene and coming back, which meant that Negron might have parked the vehicle in the spot after the shooting or the witnesses might just have been mistaken. Of utmost significance, one of these witnesses, Miley, had at least 15 seconds to look at the shooter's face, partly from the distance of about one foot, and testified that the shooter had facial hair. Had defense counsel introduced the evidence available to him that his client did not have facial hair at the time of the crime, he would have established an importanT discrepancy between Miley's description and Negron's actual appearance, and thus created a reasonable doubt 29 about the accuracy of Fevrier's in-court identification. Indeed, Miley's description was colroborated by Khavko's testimony that he selected filler 1, who had a mustache, because he "lookfed] like" the shooter. A-556-57. Unfortunately, here, too, counsel acted negligently in failing to point this out to the jury. C. Trial Counsel Failed To Object To The Court's Use Of The Incorrect Standard For Third-Partv-Culnabilitv Evidence In considering defense counsel's application to introduce evidence of third- party guilt, the trial court employed the overruled "clear-link" standard the Second Department had articulate d in People v. Aulet, lIl A.D.zd 822, 825 (2d Dept. 1985). However, defense counsel failed to object because he "did not research [the] issue atall," A-62, and was thus unawarefhatthe Court of Appeals had overruled that stringent standard five years earlier in People v. Primo,96 N.Y.2d at 355, and had replaced it with a more lenient general balancing test that governs the admissibility of all relevant evidence. Thus, counsel's lack of objection was based on ignorance of the law, not reasonable strategic judgment. It was inherently unreasonable, and thus ineffective. See Williams v. Taylor,529 U.S. at 395-96 (conduct based on a legal misunderstanding is not reasonable under Strickland); Kimmelman v. Morrison,477 U.S. at 368 ("mistaken beliefs" cannot support a finding of reasonable competence). 30 Moreover, counsel failed to support his proffer with Caban's mug shot to show that Caban bore a general resemblance to Negron, but an even closer resemblance to the actual shooter because Caban, unlike Negron, had facial hair.7 Defense counsel could offer "no reason" for this omission. A-63. This omission detracted from counsel's third-party-culpability proffer, regardless of which standard was applied. Contrary to the Appellate Division's opinion, see 112 A.D.3d at743, under Primo, the trial court should have admitted the evidence of third-party culpability under the correct standard. Primo requires the court to consider such evidence "under the general balancing analysis that governs the admissibility of all evidence." 96 N.Y.2d at356. If the probative value of the evidence of third-party guilt outweighs the "countervailing risks of delay, prejudice and confusion," id. at 356-57 , the trial court commits "error as a matter of law" in excluding the evidence, requiring reversal, id. af 357. In Negron's case, defense counsel proffered that (a) the third party, Fernando Caban,lived in the same three-family building as Negron, into which witnesses saw the shooter flee after the crime; (b) Negron and Caban looked alike; 7Of course, counsel's application would have been even more compelling had the People fulfilled their Brady obligations and provided Negron the additional information in their possession that supported Negron's defense. ,S¿e Point II, infra. 31 and (c) the evening after the shooting, Caban was anested on weapons possession charges after the police caught him with a cache of weapons, ammunition, and counterfeit bills. A-737-39,747-42. This evidence was clearly "near[] in time, place, and circumstanc[e]" to the shooting. Primo,96 N.Y.2 d,at357 (citation and quotations omitted). Three of the eyewitnesses made no identification but testified that the perpetrator entered this apartment building. Thus, it was critical for the jury to learn that not only Negron lived in that three-apartment building, but also another individual, Caban, who more closely fit the eyewitnesses' descriptions than Negron did, and who was affested on weapons possession charge the day after the crime. Such evidence would not have caused undue delay, confusion, or "prejudice" in this otherwise short trial - unless reasonable doubt is "prejudice." Justice Lasak's claim, obviously tailored to support denial of Negron's 440 motion, that he in fact applied the correct balancing test attrial, is plainly refuted by the record. In excluding the Caban evidence, he explicitly stated: "The case law is clear. You have to show a clear linkbetween this person and the crime in question." A-741(emphasis added). See, e.g., Narrodv. l{apoli,763 F. Supp. 2d 359,375-76 (V/.D.N.Y. 2011) (rejecting the Appellate Division's assumption that the trial court had weighed the equities when it had explicitly used the "clear link" test). Nothing in the trial record indicates he applied the correct standard. 32 Counsel's omissions plainly prejudiced Negron. Negron, under Primo,was entitled to have the trial court weigh the equities and exercise its discretion, at the time of the trial, under the requisite balancing test that this Court had carefully laid out four years before. A reasonable trial judge, under all the relevant circumstances, could have exercised his discretion to admit the third-pafty- culpability evidence that counsel did, and should have, proffered. Justice Lasak's failure to conduct this test, owing to his own misunderstanding of the law and to defense counsel's negligence, prejudiced Negron's right to have this balancing "performedby the trial court." People v. Williams, 56 N.Y.2d 236,240 (1982) (emphasis in original). In such a case, the reviewing court must presume that the court would have exercised its discretion in the defendant's favor, and then go on to consider whether its failure to do so was prejudicial by considering the omitted evidence against the balance of the trial court record. Cf, People v. Grant, T N.Y.3d 421, 424 (2006) ("[a]ssuming" the trial court committed error in its Sandoval decision and evaluating whether defendant's potential testimony could have affected the trial's outcome); see also Williams,56 N.Y.2d at240. Since the error - deprivation of the defendant's constitutional right to present a defense - is constitutional in dimension, the People's burden is to establish harmlessness beyond a reasonable doubl. See People v. Crimmins,36 JJ N.Y.2d 230,237,240-41 (1975). The People cannot satisfi this heavy burden here. There is certainly at least a reasonable possibility that, had the jury learned that the three-apartment building into which the shooter disappeared after the shooting contained a resident who more closely fit the shooter's description than Negron, as demonstrated by Caban's and Negron's photographs, and who was arrested the next day disposing of a weapons cache, it would have entertained a reasonable doubt that Negron was the shooter, particularly in light of all the other evidence casting doubt on Fevrier's identification testimony. D. Considered Collectively, Counsel's Errors Deprived Negron Of His Risht To A Fair Trial As we have shown, counsel's errors, considered individually, prejudiced Negron's defense and thus denied him a fair trial. That conclusion becomes even more compelling when these errors are considered cumulatively, as they must be under federal and state Iaw. See Eze v. Senkowskí,321F.3d 110, 135-36 (2dCir. 2003); Baldi,54 N.Y.2d at 146. All told, counsel's eruors prevented Negron from presenting evidence that (l) Negron did not resemble the shooter, who was wearing facial hair, while Negron was clean shaven; and (2) that a third party, who resembled Negron and had facial hair, more closely resembled the appearance of the shooter, lived in the same small apartment building where the shooter was seen 34 entering after the crime, and was arrested just hours after the shooting for firearms possession. There is at least a reasonable possibility, considering that the People's case against Negron rested almost entirely on the identification of one eyewitness, that, had the jury heard the omitted evidence, the outcome of Negron's trial would have been different. Accordingly, Negron's conviction should be vacated. POINT II THE PEOPLE VIOLATED THEIR OBLIGATION UNDER BR.ADY AND WLARDI TO DISCLOSE EVIDENCE SUPPORTIVE OF NEGRON'S THIRD.PARTY.CULPABILITY DEF'ENSE A. The Ap¡olicableLaw Under Brady And Vilardi The Fifth, Sixth, and Fourteenth Amendments to the United States Constitution impose an absolute obligation on a prosecutor to disclose to the defense favorable evidence "material either to guilt or to punishment." Brady v Maryland,373 U.S. 83, 87 (1963). Failure to do so violates due process. /d Brady material can be favorable "either because it is exculpatory, or because it is impeaching." Strickler v. Greene,527 U.5.263,282 (1999). A constitutional violation is established when such evidence is withheld and it is "material" to the outcome of the case. Id. at28l-82 Under the federal standard, evidence is material if there is a "reasonable 35 probability' that, had the prosecution timely disclosed the evidence, "the result of the proceeding would have been different." United States v. Bagley,473 U.S. 667, 682 (1984). A reasonable probability means "that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial." Smith v. Cain,132 S. Ct. 627,630 (2012) (citation omitted). Of course, in New York, when the People have failed to disclose favorable evidence that the defense has specifically requested, courts measure materiality by whether there is any "reasonable possibility" that the failure to disclose the evidence "contributed to the verdict." People v. Vilardi,T6 N.Y.2d 67,77 (1990). This is because a specific "request puts the prosecutor on notice that there is particular evidence the defense does not have and believes to be important." Id. at 73-74. By nature,the Vilardi Test is strict and thus the People's failure to disclose specifically requested evidence is "'seldom, if ever, excusable."' Id. at74 (quoting United States v. Agurs,427 U.5.97, 106 (1976)). Evidence implicating someone other than the defendant is clearly favorable to the defense under Brady. Thus, in People v. Colon,l3 N.Y.3d 343,350 (2009), this Court held that the prosecutor should have disclosed interview notes with two eyewitnesses who provided evidence of possible third-party guilt. Such evidence is "of a kind that would suggest to any prosecutor that the defense would want to 36 know about it." Lekav. Portuondo,257 F.3d 89,99 (2dCir.2001). See also Millerv. Angliker,848F.2dl3l2,132l (2d Cir. 1988) ("there fcannot] be any question" that evidence suggesting another's guilt is "favorable" to the defendant). In a similar vein to the Brady rule is the due process requirement that a prosecutor refrain from relying on false or misleading evidence or argument to achieve a conviction. See Colon,13 N.Y.3d at349-50; People v. Steadman, S2 N.Y.2d 1,7 (1993); People v. Novoa,70 N.Y.2d 490,498 (1987); Su v. Filion, 335 F.3d 119,126-27 (2d Cir. 2003); Jenkins v. Artu2,294F.3d284,294 (2dCir. 2002). A prosecutor is an officer of the court, whose obligation is to achieve justice, not just a conviction. 5u,335 F.3d at 726; Steadman, 82 N.Y.2d at7. The prosecutor may not mislead the court into denying a defendant relief to which he may be entitled. Giglio v. United States,405 U.S. 150, 153 (1972); Colon,13 N.Y.3d at349-50. Where this occurs, the constitutional harmless error standard applies. Steqdmqn, 82 N.Y.2d at 8-9. The conviction will be vacated or reversed unless the People prove beyond a reasonable doubt that there is no reasonable possibility the outcome was affected. Crimmins, 36 N.Y.2 d at237,240-4L 37 B. The People Have Never Disputed That The Vilardi Standard Applies To Negron's Brady Claim; Thus, The Appellate Division Erred In Employing The Federal 'Reasonable Probability' Standard In deciding Negron's Brady/Vilardi claim, the Appellate Division found Negron suffered no prejudice because there was "no reasonable probability that the failure to disclose the fadditional evidence of Caban's guilt] contributed to the verdict." ll2 A.D.3d at744. The Appellate Division's use of the "reasonable probability" standard for materiality was clearly erroneous. This Court should apply the Vilardi test to Negron's Brady claims. In opposing Negron's 440.10 motion, and thereafter in its brief to the Appellate Division, the People never disputed that the Vilardi materiality standard applied to Negron's Brady claim. A-288-89 ,296. The motion court accordingly applied the "reasonable possibility" standard. A-10. With the issue having been waived, the Appellate Division plainly was not empowered to evaluate Negron's Brady claim solely under the more stringent federal standard. See People v Chavis,91 N.Y.2d 500, 506 (1998) (Appellate Division is without power to consider claims the People waived in the motion court); People v. Garcia,46 A.D.3d 461,464-65 (1st Dept. 2007) (People failed to preserve any argument that the "reasonable probability" test applied and thus the Appellate Division lacked 38 C. power to review the People's claim).8 The People, Fully Aware That Negron Would Attempt To Defend Himself Through Evidence Of Third-Party Culpability, Violated Brødl By Suppressing Evidence Supportive Of That Defense As noted, during Negron's triaI, defense counsel made an application to admit evidence that a third-party, Fernando Caban, was the true shooter. A-737- 43. Counsel supported his motion with evidence that Caban had been arrested on November 5,2005 - the same day as the shooting - after the police found him with a cache of weapons in his apartment at - the same building into which the perpetrator ran after the shooting The assistant district attorney trying Negron's case, who also prosecuted Caban for weapons possession, opposed Negron's motion. He argued that the evidence of Caban's guilt was too attenuated and not sufficiently probative to sEven assuming the People have not waived any argument that the "reasonable probability standard" governs this appeal , the Vilardi standard nevertheless applies. Defense counsel's application to admit evidence of third-party guilt put the People on notice that Negron was interested in evidence tending to connect Caban to Fevrier's shooting. Vilardi made clear that when defense counsel has given the People specific notice "of its interest in particular material, heightened rather than lessened prosecutorial care is appropriate." '16 N.Y.2d at77. This is because the People's awareness and nondisclosure of material the defense considers "important," has more "potential to undermine the fairness of the trial, and ought to be given more weight than as simply one of a number of discretionary factors to be considered by a reviewing court." Id. Here, the People were plainly aware defense counsel considered evidence of Caban's guilt important. Thus, their failure to disclose additional such material in their possession, is subject to Vilardi's standard of prejudice. See also People v. Ramos, 146 Misc. 2d 768,lll (Sup. Ct., Bronx Co. 1990) (when the People make "an affirmative specific representation as to specific Brady material ... [a] specif,rc request for that material will ... be implied"). 39 meet the legal standard for third-party-guilt evidence. A-739-41. All the while, the same prosecutor failed to disclose to the defense further information in his possession that supported defense counsel's application. The ADA did not disclose that, when Caban saw the police enter (intending, unbeknownst to Caban, to search Negron's apartment), Caban fled from the building with his weapons, forcibly entered a resident's apartment in a neighboring building, told residents to lock the front door, ran upstairs to the roof, discarded bags of weapons and ammunition there, and then escaped off the roof See pp. 14-15, supra. The ADA did not disclose police and civilian witnesses who could have testified to Caban's guilty behavior. See id. Because this evidence tended to suggest Caban's consciousness of guilt for Fevrier's shooting, which had taken place earlier that day, it was favorable to Negron's defense. The ADA also did not inform the defense that Caban's weapons cache included .45 caliber ammunition - the same caliber used in the shooting. In opposing Negron's Brady claim on this appeal, the People cannot rely on the Supreme Court's bizane "finding" that the People did, in fact, disclose the evidence that Caban's weapons cache included .45 caliber ammunition. See p. 14, supra. The People never asserted, in the motion court, that they disclosed the information regarding the ammunition that defense counsel swore he had not 40 received, and thus they have waived any claim to the contrary.e See Chav¿s, 9l N.Y.2d at 506 (courts of review have no power to consider claims the People waived in the motion court). Moreover, when the People concede a fact material to the defendant's motion, the motion court certainly may not make a contrary factual f,rnding by relying on "evidence" it claims to personally possess without disclosing it to the parties or making it part of the record, let alone doing so without a hearing. Because the court's "finding" in this regard has no support in the record, did not result from any type of formal, adversary proceedin g, and depends upon nothing more than blind faith, it cannot be relied upon for the puryoses of this appeal. Under the Vilardi materiality standard, the Peopl e's Brady violations wanant reversal. It was inexcusable for the prosecutor to withhold evidence supporting Negron's third-party culpability defense while simultaneously arguing that Negron's evidence in support of such a defense was insufficient. Caban's frenzied behavior as police approached his three-apartment building, shortly after the shooting, constituted powerful evidence of Caban's consciousness of guilt for that shooting, especially alongside the other defense evidence that Caban fit the eAs noted above, the People continue to maintain that they have not seen the property voucher the Supreme Court referred to in its opinion. Neither present defense counsel nor Negron's trial counsel have ever seen this document. A-62. 4l shooter's description more closely than Negron. So, too, did his disposal of .45 caliber ammunition - the same caliber used in the shooting. Disclosure might well have led the trial court to make a different ruling under either the incorrect, overly stringent, or the correct, less stringent, standard. Admission of the third-party- culpability evidence, in light of the weaknesses in the People's case, easily could have led to a more favorable outcome. In sum, the prosecutor not only violated Brady and Vilardi,but he also violated due process by misleading the court about the totality of the evidence that the court was required to weigh. (The prosecutor also bears responsibility with defense counsel for failing to point out the court's effor in applying the overly stringent standard. He, too, is charged with knowledge of the law.) The Appellate Division's reasons for concluding the undisclosed evidence was "not exculpatory" are wrong. First, it pointed out there was no ballistics evidence that "conclusively linkfed] the shell casings recovered from the .45 caliber ammunition found in Caban's cache, or any weapon found in the cache," to the shooting. 112 A.D.3d at744. But the issue, in the context of the Brady analysis, is not whether the evidence "conclusively" tied Caban to the shooting Rather, the issue is whether the evidence was favorable. See Kyles v. Whitley,574 U.S. 419, 450-451 (1995) (explaining that the State, in determining that evidence 42 was not Brady material, had confused the weight of the evidence with whether it was favorable). Negron's counsel unquestionably was interested in evidence tending to suggest Caban was the shooter. The suppressed evidence regarding the .45 caliber ammunition, together with the other evidence, tended to prove that Caban was, or might have been, the shooter. It did not need to do so "conclusively" to be favorable to the defense. The Appellate Division also concluded that Caban's frantic disposal of his weaponry upon seeing the police arrive at his apartment building "showed only consciousness of guilt as to the possession of illegal guns and other contraband." 112 A.D.3d at744. This was an inference that the jury would not have been required to draw. In context, Caban's conduct also suggested he was trying to cover up evidence that could have linked him to the shooting. Seeing the approach of police just hours after the shooting, Caban fled in a panic from the building, containing just three apartments, into which the shooter had gone, and disposed of ammunition that matched the ammunition used in the shooting. At the same time, no evidence of any kind linking Negron to the shooting was found in his apartment during the police search. There is at least a reasonable possibility that had the People not misled the trial judge into denying Negron permission to introduce third-party-culpability 43 evidence, the outcome of the trial would have been more favorable to Negron. Indeed, the federal materiality standard also is met. CONCLUSION Unfairness plagued Julio Negron's trial. His attorney failed to investigate and present readily-available, compelling evidence that Negron did not resemble the shooter and that a third-party was responsible for the crime. The People compounded the harm to Negron by knowingly suppressing additional evidence of the same third-party's guilt. Only one eyewitness, after a grossly inappropriate and suggestive lineup, identified Negron at trial. He already has served nine years of his twelve-year sentence. His conviction should be vacated, and the matter remanded for a new trial before a different judge. Respectfully submitted, bN B. RUDIN Offices of Joel B. Rudin 6 Fifth Avenue, Tenth Floor New York, New York 10020 (212) 7s2-7600 jbrudin@rudinlaw.com Att orney þr D efe n d ant -App e I I ant New York, New York October 77,2014 Dated: 44 COURT OF APPEALS STATE OF NEW YORK ------------x THE PEOPLE OF THE STATE OF NEW YORK, AFFIDAVIT OF SERVICE BY OVERNIGHT AND REGULARMAIL -against- JULIO NEGRON, Ind. No. 398/50 : (Queens County) Defendant-Appellant. : APL-2014-00230 -----------x STATE OF NE\M YORK ) COUNTY OF NEW YORK TI{ERESA PETERS, being duly sworn, hereby deposes and says: I am employed at the Law Offices of Joel B. Rudin, 600 Fifth Avenue, 10th Floor, New York, New York 10020, am not apar:ty to this action and am over the age of 18 years. On Octob er 17, 20I 4,I served by Federal Express Overnight Mail Service, and Regular Mail Service (as indicated) upon the following parties, true and correct copies of the Opening Brief for Defendant-Appellant, and Appendix (Volumes I and II), by depositing true and correct copies thereof with an official Federal Express Office, fully paid, and the other enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State: Appellee, ss.) ) John M. Castellano, Esq. Assistant District Attorney Queens County 125-01 Queens Boulevard Kew Gardens, New York 11415 [3 copies each of the Brief and Appendixl OVERNIGHT MAIL Sworn to before me this lTth day of Octobet,2014 Mr. Julio Negron DIN: 06-A-2571 Green Haven Correctional Facility P.O. Box 4000 Stormville, New York 12582-4000 [1 copy of the Briefl REGULAR MAIL ) v THERESA PETERS Q b