The People, Respondent,v.Julio Negron, Appellant.BriefN.Y.October 21, 2015APL-2014-00230 Ind. No.398/05 (Queens County) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK Respondenl, -against- JULIO NEGRON, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT JOEL B. RUDIN Law Offices of Joel B. Rudin, P.C. 600 Fifth Avenue, 10th Floor New York, New York 10020 (212) 7s2-7600 (Phone) (212) 980-2968 (Fax) E-mail: jbrudin@rudinlaw.com Attorney for Appellønt fufio Negron January 912015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES 1 INTRODUCTION POINT I DEFENSE COUNSEL'S FAILURE TO PREPARE THE DEFENSE CANNOT BE EXCUSED BY THE 'WHOLE' OF HIS CONDUCT, NOR CAN THE PEOPLE TWIST THIS WEAK CASE INTO AN'OVERWHELMING' ONE IN ORDER TO MINIMIZE THE EFFECT OF COUNSEL'S MULTIPLE ERRORS.......... 1 2 A The 'Whole' Of Defense Counsel's Conduct Does Not Excuse His Individual Errors Or Render Them Inconsequential To The Outcome Of The Trial.......................... 4 There Is No 'Reasonable' Explanation For Defense Counsel's Specific Omissions.............. ......... 7 B Counsel Was Ineffective Because He Failed To Present Evidence Supportive Of Negron's Misidentification Defense.. ............... 7 Defense Counsel Was Ineffective For Failing To Argue The Proper Standard For Third-Party-Culpability Evidence........ ............. 12 C. The People's Case V/as Not 'Overwhelming' I 2. r6 POINT II TFIE PEOPLE KNEWDEFENSE COT]NSEL WAS UNAV/ARE OF THE EXISTENCE OF THE FAVORABLE EVIDENCE UNDERBR,4DTAND THUS THEIR WITHHOLDING OF IT wAS INEXCUSABLE... .................. 20 A. The Prosecutor Deliberately \Mithheld Information He Knew Defense Counsel Was Unaware Of In Order To Mislead The Court Into Depriving Appellant Of His Constitutional Right To Present A Third-Party-Culpability Defense............ ..... 20 The Suppressed Evidence Of Third-Party Guilt Was Materia1.......... .............25 CONCLUSION 30 B TABLE OF AUTHORITIES Case Banks v. Dretke,540 U.S. 668 (2004). 2r-22 Gotti v. United States,622F. Supp. 2d87 (S.D.N.Y.2009) 25n Harríngton v. Richter,562 U.S. 86, 131 S.Ct. 770 (2011) 9n In re Seagroatt Flora Co., Inc., 78 N.Y.2d 439 (1991). 24 Jones v. Vacco,1,26F.3d 408 (2dCir. 1997) Page Kyles v. Whitley,5I4 U.S. 419 (1995) Lindstadt v. Keane,239 F .3d I9l (2d Cir. 2001) Marcrum v. Luebbers,509 F.3d 489 (8th Cir. 2007) People v. Garcia, 46 A.D.3d 461 (1st Dept . 2007). People v. LaValle, 3 N.Y.3d 88 (2004) People v. Oliveras, 21 N.Y.3d339 (2013) People v. Primo,96 N.Y.2d 351 (2001) People v. Rivera,7l N.Y.2d705 (1988). People v. Schultz, 4 N.Y.3d 521 (2005) People v. Shinkle, 51 N.Y.2d 417 (1980) People v. Vilardi, 76 N.Y.2d 67 (1990). 13 28n 5 9 22-23 24-25 5,6 8 12,26-27 27 ,27n 24 23,25 People v. Whalen, 59 N.Y.2d273 (1983) i 23 Case Ramchair v. Conway, 601 F.3d 66 (2dCir.2010). Steinmann v. Silverman, 14 N.Y.2d 243 (1964). Strickland v. Washington, 466 U.S. 668 (1984) United States v. Aichele,94IF.2d761 (9* Cir. 1991) United States v. Payne,63 F.3d 1200 (2dCir.1995). United States v. Wilson,90l F.2d378 (4th Cir. 1990) wiggins v. smith,539 u.s. 510 (2003). Page 5 8-9 24 22 8 25n 25n -11- COURT OF APPEALS STATE OF NEW YORK ----------------x THE PEOPLE OF THE STATE OF NEW YORK, Appellee, -against- JULIO NEGRON, Defendant-Appellant. Ind. No. 398/05 (Queens County) APL-2014-00230 -----x REPLY BRIEF FOR DEFENDANT.APPELLANT INTRODUCTION Emerging from the People's brief is this lamentable reality: The prosecutor deliberately withheld Brady material supporting Julio Negron's third-party- culpability defense when he realized the defense lawyer didn't have it, and then misled the trial judge into excluding Negron's defense for lack of evidence. The Queens District Attorney's brief embraces this misconduct. In the District Attorney's view, if a defense lawyer had it within his power to discover Brady material (but did not), the People are justified in suppressing such evidence. Rarely is the linkage between defense counsel's inadequacies and Brady violations, which so often go hand in hand, so starkly exposed. This Court should denounce this behavior, and the People's embrace of it, and vacate this wrongful conviction. POINT I DEFENSE COUNSEL'S FAILURE TO PREPARE THE DEFENSE CANNOT BE EXCUSED BY THE 'wHoLE' OF HIS CONDUCT, NOR CAN THE PEOPLE T\ryIST THIS \ryEAK CASE INTO AN .OVERWHELMING' ONE IN ORDER TO MINIMIZNTIJE EF'FECT OF COUNSEL'S MULTIPLE ERRORS In our opening brief, we demonstrated that trial counsel for Julio Negron inexcusably prejudiced his client's defense by failing to take basic, essential steps to investigate and assemble the facts and to research the law applicable to this case In response, the People contend that,regardless of any individual errors, defense counsel's performance was competent as a "whole"; that there were theoretical explanations for counsel's omissions; andthat, in any case, Negron suffered no prejudice on account of counsel's omissions because the People's case was "overwhelming." These arguments are unpersuasive. First, just because defense counsel was not negligent in every aspect of the defense does not excuse individual errors, due to lack of preparation, which likely prevented Negron from achieving a more favorable result. Indeed, the People completely disregard the case law holding that an individual, negligent error may require a finding of ineffectiveness even where counsel's performance otherwise 2 was competent. Most people would consider ineffective a plumber who does a greatjob installing half of the necessary pipes and overlooks the rest of the job. Or a roofer who installs half a roof. Second, theoretical explanations for counsel's errors are no basis to presume that counsel exercised reasonable judgment where counsel himself has acknowledged that there is no reasonable explanation for his omissions. The People ignore the controlling case law holding that a reasonable exercise of judgment will not be presumed where counsel failed to properly prepare, and thus any'Judgment" was negligently based upon an incomplete knowledge of the relevant law or facts. Finally, the People's brief itself effectively refutes the People's argument that the evidence of guilt was overwhelming. In exhaustively canvassing the record to show the things that defense counsel did do competently, the People demonstrate how truly weak their case was. The People's showing makes our case for us: that in view of the weakness of the People's identification evidence, if defense counsel had properly prepared, the additional exculpatory evidence he would have been able to elicit likely would have resulted in a more favorable outcome for Negron. J A. The 'Whole' Of Defense Counsel's Conduct Does Not Excuse His Individual Errors Or Render Them Inconsequential To The Outcome Of The Trial The People argue that the "totality of defense counsel's conduct ... demonstrates that defense counsel acted in a competent manner" and "had a coherent and logical trial strategy." People's Brief in Opposition ("People's Bt."), p. 33. In furtherance of their "totality" argument, the People spend nearly six pages of their brief outlining the effectiveness of counsel's "dogged" pursuit of Negron's misidentification defense. ,See People's Br., pp. 33-38. Ironically, this review demonstrates just how weak the People's case against Negron truly was. But it cannot excuse counsel's preparation failures. Negron had a right to more than an attorney who did half his job. Half his job was to read and use the Rosario material the prosecution spoon-fed him. The other half required him to investigate potential exculpatory witnesses for the defense. See generally Brief for Defendant- Appellant ("Def. B.."), pp.21-26. The People brought 100 percent of their resources to bear to send Julio Negron to the penitentiary. He was entitled to a lawyer who used 100 percent of his resources to fight back. A glaring omission in the People's brief is its failure to grapple with the controlling case law of the United State Supreme Court, and this Court, holding that, while counsel's performance is generally measured in its "totality," a single effor that affects the outcome of the case requires vacatur of a conviction for 4 ineffectiveness. SeeDef. Br., p. 22. As we pointed out in our opening brief the failure to properly investigate the operative facts and law is such an elror. Id.,pp. 23-24. A proper investigation is "[e]ssential to any representation." People v. Oliveras,2l N.Y.3d 339,346 (2013). As Judge Rivera explained in Oliveras, this is because counsel's "strategy is shaped in signiflrcantpaft by the results of the investigation state of the representation." Id. Where defense counsel has failed to conduct a proper investigation of his client's case, the court owes no deference to counsel's so-called strategic choices because those choices likely were skewed by counsel's ignorance. See id. at346-48; see also Strickland v. Washington,466 U.S. 668, 691 (1984) (counsel must "make reasonable investigations" or "make a reasonable decision that makes particular investigations unnecessary"). Where defense counsel has failed to conduct a necessary investigation that would have led to information favorable to the defendant, he is ineffective as a matter of law. ,See Lindstqdt v. Keane, 239 F .3d 197, 200-02 (2d Cir. 2001) ; Oliveras, 2 1 N.Y.3d at 348 Here, as the People point out, defense counsel did use the discovery and Rosario material they provided to him to show some of the weaknesses in the People's evidence. But admittedly for no valid reason, counsel failed to interview nearly a dozen witnesses after Negron told him they could corroborate that - contrary to the appearance of the actual perpetrator -- he was clean shaven at the 5 time of the shooting. Interviewing these witnesses was the "bare minimum" to be expected of counsel. Oliveras,2l N.Y.3d at348. As in Oliveras, counsel's omission violated Negron's constitutional right to effective representation. Negron was entitled to a lawyer who performed more than half his job. The People argue Negron's case is distinguishable from Oliveras. They seem to think defense counsel's omission in Oliveras - failing to obtain the defendant's psychiatric records to help challenge the voluntariness of his confession - was signihcantly worse than counsel's omission here. See People's Br., pp. 44-45. But the cases are directly analogous. In Oliveras, counsel presented the defendant's mother's supportive testimony, but didn'ttry to obtain the records that would have corroborated it. In Negron's case, counsel presented Negron's own testimony that he didn't wear facial hair, but failed to interview nearly a dozen witnesses who could and would have corroborated it. Oliveras is not distinguishable from this case; it controls this case. Here, as in Oliverqs) defense counsel tried to race on one leg a prosecutor who had two. It was no contest. 6 B. There Is No 'Reasonable' Explanation For Defense Counsel's Specific Omissions I Counsel Was Ineffective Because He Failed To Present Evidence Supportive Of Negron's Misidentification Defense Negron's attorney inexcusably failed to investigate, and thus present, readily available evidence that Negron did not resemble the shooter, whom eyewitness Elliot Miley testified wore facial hair. Defense counsel failed to interview nearly a dozen witnesses who would have corroborated Negron's testimony that he did not wear facial hair and was clean shaven on the night of the shooting; failed to elicit Negron's clean-shaven appearance from the two alibi witnesses he did call to testifu; failed to introduce Negron's arrest photo showing his clean-shaven appearance; and failed to highlight that the lineup filler whom eyewitness Dmitriy Khavko selected because he "look[ed] like" the shooter had a mustache. ,See Def. Br., pp. 16-17,26-27. The People acknowledge that, in order to win attrial, Negron "needed to discredit" victim Mervin Fevrier's testimony that Negron was the shooter. People's Br., pp. 33-34. Fevrier was the only eyewitness - out of five - to identift Negron. Despite conceding the critical importance of the identity issue, the People contend defense counsel's omissions were "inconsequential." 1d.,p.33. They are 7 wrong The People contend that "valid strategic reasons existed for counsel not to emphasize that defendant was clean shaven at the time of the shooting." Id., p. 40. They posit that counsel could have thought that highlighting Negron's clean- shaven appearance would have actually hurt Negron's case because Fevrier "never described the shooter as having facial hair." Id. However, infacr, counsel did present Negron's testimony he was clean shaven and argued this point in summation. A-875, 918. Moreover, as we have shown, any strategic'Judgment" to downplay this discrepancy would have been invalid because it would have been made without complete information: counsel had not interviewed the eleven potentially exculpatory witnesses. Meanwhile, counsel has acknowledged that, in fact,he made no such strategic judgment. A-61-64. He has conceded he has no explanation, of any kind, for his failure to present evidence corroborating Negron's testimony that he was clean shaven. A purely theoretical explanation that is disproven in a post-judgment motion such as this cannot excuse an omission that, infact, resulted from poor reasoning or neglect. See People v. Rivera,7l N.Y.2d 705,709 (1988) (where defendant "demonstrate[s] the absence of strategic or other legitimate explanations for counsel's failure[,]" the court will not "presume that counsel ... exercised professional judgment"); see also Wiggins v. Smith,539 U.S. 510,526-27 (2003) ("accurate description," not"post hoc rationalization," of defense counsel's conduct controls); Ramchair v. Conway, 601 F.3d 66,77 (2d Cir. 8 2010) (accepting counsel's claim that her omission was "not a product of strategy, sound or otherwise, but of mistake"); Marcrum v. Luebbers, 509 F.3d 489,502 (8th Cir. 2007) ("[W]hen a petitioner shows that counsel's actions actually resulted from inattention or neglect, rather than reasoned judgment, the petitioner has rebutted the presumption of strategy, even if the government offers a possible strategic reason that could have, but did not, prompt counsel's course of action."). I Nor would any such'Judgment" - "not to emphasize that defendant was clean shaven" - have been reasonable. The victim, Fevrier, contrary to the impression left by the People's brief, didn't suggest that the shooter was clean shaven: He didn't say, one way or the other, evidently because he didn't notice (so much for the reliability of his observation). A-623-24, 656 (Fevrier noticed only that the shooter wore a wool cap and a darkjacket and "looked Spanish"). Elliot Miley, on the other hand, definitely noticed that the shooter had facial hair, while Khavko selected a lineup filler with a mustache. It would not have been reasonable to introduce the defendant's own testimony that he had facial hair in I The People, relying on the Supreme Court's opinion in Harrington v. Richter, 562 U.S. 86, _, 131 S. Ct.770,790 (2011), claim it is of "no moment" thatNegron's defense counsel admitted in an affirmation that he had no basis, strategic or otherwise, for his failures with respect to the misidentification defense. People's Br., p. 39. But, in Harrington,the Supreme Court did not hold that a reviewing court may overlook a sworn statement from defense counsel indicating that his omissions were not based on strategy. Indeed, in Harrington, defense counsel did not submit an affrdavit regarding his state of mind; the Ninth Circuit majority merely speculated, in its opinion, about counsel's thinking. See Harrington,l3l S. Ct. at790. 9 order to rebut the one eyewitness's identification of him, and then not to corroborate the defendant's testimony. Counsel left his own client out to dry The People contend that counsel might have given Elliot Miley's description little weight because, they say, it was based on a "very poor viewing" of the shooter. ,See People's Br., p. 42. But Miley's viewing of the shooter was not "poor." Miley testified he first saw the shooter's face from just a foot away. He observed the shooter through the open window of Fevrier's car as Fevrier slowly drove by the shooter's vehicle. A-764-65,772. Miley soon thereafter saw the perpetrator again from across the street, just before the shooter opened fire. A- 770-71. While Miley testified he only briefly looked at the shooter's face when they were facing each other in their cars, A-75 4-55, Fevrier testified that it took him approximately twelve seconds to maneuver his car, in which Miley was sitting, around the shooter's vehicle, A-652-53. Thus, Miley had twelve seconds to view the perpetrator's face. This certainly was sufficient time for Miley to notice that the shooter wore facial hair. Much shorter observations have sent criminal defendants to prison for life. The People discount the significance of Khavko's selection of a lineup filler with a mustache because "the filler was not the shooter, and fthe filler's] facial hair was different than the description Miley provided." People's Br., p.43. Obviously, the filler was not the shooter. But Khavko's selection of him was 10 significant because he testified the filler "look[ed] like" the shooter, A-556 -57 ,but he did not look like Negron. That the filler had no beard, just a mustache, does not detract from the significance of Khavko's testimony. Like Miley, he evidently believed the shooter had facial hair - unlike Negron. There was no reasonable basis for counsel to de-emphasize Khavko's testimony and the facial-hair issue. The People speculate that the witnesses whom defense counsel did not bother to interview might not have significantly aided Negron's defense because they did not see Negron at the time of the shooting and only would have been able to testifu about Negron's "general practice" to be clean shaven. People's Br., p. 40. However, the People ignore that all of the eleven witnesses who provided affidavits saw Negron on a daily basis and never saw him with facial hair. A-1 19- 130. Several of these witnesses saw him either on the day of the shooting or within a few days of it. A-122-24,127,129. The two alibi witnesses who did testifli at trial would have added, if counsel had only asked, that Negron was clean shaven during the evening of the shooting. A-72,74. And counsel also failed to introduce Negron's mug shot, taken a few hours after the shooting following his 9:00 a.m. arrest, which also showed him to be clean shaven. Sure, it's possiblehe had grown facial hair, unbeknownst to all eleven witnesses , that his alibi witnesses would have been lying had they denied that, and that he shaved off his mustache just before the police caught up to him early the same morning. Anything is possible. 11 But defense counsel's task was not to def,rnitively prove his client's innocence, just to raise a reasonable doubt. The evidence he omitted would have done at least that. The People further argue that the jury already must have rejected the credibility of Negron's alibi witnesses, Manuel Santiago and Edwin Mendez, who testified that Negron was dressed differently than the perpetrator, so what difference would it have made if they also had testified that Negron was clean- shaven? People's Br., p. 41. However, their testimony about Negron's lack of facial hair would have been corroborated by the additional witnesses counsel never interviewed. And the omission of such testimony undercut Negron's credibility, since he denied having facial hair and his alibi witnesses presumably would have corroborated that testimony if it were true. 2. Defense Counsel Was Ineffective For Failing To Argue The Proper Standard For Third-Party-Culpability Evidence The People cannot and do not seriously defend defense counsel's failure to research the law and to object to the court's employment of an overly stringent "clear link" test - rejected by this Court in People v. Primo,96 N.Y.2d 351 (2001) - before permitting third-party-culpability evidence. The most they can say is that counsel acted reasonably "by properly seeking to admit the evidence" of Caban's guilt. People's Br., p. 48. With this much we can agree - it made sense for him to seek admission of such vital evidence. But if, as the People acknowledge, it made sense to argue for admission of such evidence, it was essential for counsel to l2 research the proper standard for admission and to advocate it when the court explicitly employed an overly stringent - and an oveffuled - test. The People's real argument is that Negron wasn't prejudiced. See People's Br., pp. 48-56. They contend that, regardless of the words the court used on the record, in its mind it really was using the right test. And they further argue that, even under the proper standard, the court's ruling was coffect. Once again, we disagree First, the trial court is bound by the record it made. The court clearly indicated it believed the defense had made an inadequate showing because it had failed to demonstrate a"clear link" between the evidence concerning Caban and the commission of the crime. A-741. This was an experienced judge who had been a top-tier homicide prosecutor for the Queens D.A.'s Office before ascending to the bench in Queens. He knew how to articulate legal tests. The record he made must be taken at face value. See, e.g., Jones v. Vacco, 126 F .3d 408, 417 (2d Cir. 1997) ("[W]e recognize that the written word in the record is 'black and white' evidence of what did or did not occur" attrial, despite the trial judge's contrary testimony at a reconstruction hearing.). Imagine a criminal defendant arguing on appeal that defense counsel meant to make the proper objection but just failed to articulate it properly. The People would hold the defendant to the record his lawyer had made and argue lack of preservation, and so would any appellate court. 13 This situation is no different. Certainly if the prosecutor realized the judge was applying the right standard but just not clearly articulating it, he could have raised the issue and ensured the court made the proper record. Instead, he stood by and profited from the court's effor. Even if this Court were to search beyond the trial record and consider Justice Lasak's claim that he really employed the correct standard despite what he said on the record, it should reject this claim as self-serving and unreliable. The People deride as "extraordinary" Negron's trial counsel's claim that he can recall the reasons for his effors of omission attrial, seePeople's. Br., p. 40, yet would credit Justice Lasak's insistence, six years after the trial, having undoubtedly presided over dozens of trials in the interim, of what he really was thinking. Moreover, Justice Lasak is likely to suffer from the same temptation as other human beings to deny a mistake, especially where admitting a mistake would have a distasteful consequence - here, a potential retrial for a man whose unlawful conviction already has brought about nine years of imprisonment. Indeed, Justice Lasak's record in this case is not comforting with respect to his neutrality: He decided Negron's f,rrst 440 motion without waiting to receive this imprisoned, pro se movant's reply; he ignored the eleven affidavits Negron already had filed, writing a decision that erroneously stated that Negron had failed to file such evidence; and he then refused to decide Negron's several motions for reargument or renewal, t4 content to let him languish in prison, until a federal judge appointed the undersigned to represent Negronpro bono. SeeDef. Br., pp. 13-15. On this record, this Court should not defer to Justice Lasak's self-serving claim that he didn't mean what he plainly said at the trial. Regarding defense counsel's failure to use Caban's mug shot in his proffer in support of his third-party-guilt application, the People speculate that counsel failed to display the picture because Negron and Caban "do not resemble one another." People's Br, p. 53. However, defense counsel's uncontradicted affirmation admits he had "no reason" for not using Caban's arrest photograph in support of his application. A-63. In fact, the mug shot exhibits show that both men were almost identical in height, weight, age, skin tone, and ethnicity. Compare A-1069 with A-1070. While Negron's head is shaven, the witnesses testified the perpetrator wore a skullcap or bandana, so this difference with Caban, who had hair, would not have been noticeable. A-529,550,770-71. Far more significant than the difference in the shape of their faces is that Caban's mug shot shows him with facial hair, meaning he matched the eyewitness descriptions of the shooter. Thus, contrary to the People's claim, see People's Br., p. 53, this evidence would clearly have aided counsel's proffer. Second, the People argue that, even if defense counsel had cited the correct standard as well as all the evidence available to him, the trial judge's ruling would 15 have come out the same. But, as we demonstrated in our opening brief, and as the People ignore, Negron had a right to have the court exercise its discretionbased upon the correct legal test and all the evidence. Even if one assumes for the sake of argument that a reasonable judge could have ruled properly against Negron, a reasonable judge also had discretion to rule infavor o/Negron. Caban was one of just two other tenants who lived in the same building as Negron; he looked more like the eyewitness description of the shooter than Negron; and, unlike Negron, he engaged in guilty behavior - disposing of a cache of weapons and ammunition - when the police approached his building later the same day as the crime. Because Negron was deprived of his right to have the court appropriately exercise its discretion, he is entitled to the presumption that the court would have exercised its discretion in his favor. SeeDef. Br., p. 33. And had the court done so, in this otherwise close case, there is a reasonable likelihood that the outcome of the trial would have been more favorable to Negron. C. The People's Case Was Not'Overwhelmins' The People maintain that counsel's effors were inconsequential because their case was "overwhelming." The case was certainly not overwhelming. In making their argument, the People present a misleading summary of the trial evidence The People emphasize that Fevrier, the victim, had an excellent opportunity to view the shooter and "picked defendant out of a lineup." People's Br., pp. 3, 55, t6 69. But they bury in a footnote that Fevrier, despite their contention he was in a good position to identifu the shooter, initially failed to make a positive identification of Negron and did so only after a l5-minute, closed-door meeting with two detectives and a prosecutor, from which Negron's attomey was excluded. A-341-42; see People's Br., p. 3 n.1. The disturbing nature of this procedure, together with the detectives' use of police officers as fillers who did not resemble Negron, led to the hearing court's suppression of this lineup as evidence at trial. A-402-04. While Fevrier was perrnitted to identiff Negron in the courtroom when he was sitting at counsel's table and obviously was the man on trial, this was hardly overwhelming evidence of identity Meanwhile, the People's argument overlooks that the jury heard that none of the other four eyewitnesses to the shooting picked out Negron. Two witnesses - Miley and Khavko - viewed Negron in a lineup and selected fillers, A-555-57, 761-62, and another - Andriy Vintonyak - was unable to identifr Negron from the lineup, A-505-06. A fourth eyewitness - Zoryana Ivaniv - viewed Negron in a show-up and told police Negron was not the shooter. A-533. The People assert that that eyewitnesses Miley, Vintonyak and Khavko told police "that defendant had been driving the 1999 Monte Carlo that was parked across from fdefendant's] apartment." People's Br., p. 13. However, this testimony had its problems. The People omit that Miley initially told the police t7 that the shooter was driving a four-door sedan, while Negron's Monte Carlo was indisputably a two-door coupe. A-750-51,772-73.2 Moreover, Vintonyak and Khavko never told the police, as the People maintain, that"defendant had been driving the Monte Carlo." People's Br., p. 13 (emphasis added). Indeed, Vintonyak and Khavko never identified Negron as the shooter, and neither witness was able to give the police any description of the shooter's car. The People also state that the witnesses' "identification" of the shooter's car took place "[m]inutes" after the crime. People's Br., p.2. Butthey obscure how many minutes:fifteen. A-487,552-53. They omit as well that during those fifteen minutes the witnesses were not present at the scene of the crime, and only pointed to the car after they returned. The true shooter easily had enough time to leave the scene of the crime before these witnesses returned. In fact, when Miley first encountered the police after the crime, he told them that he saw the perpetrator, after shooting Fevrier, get back in his car and drive away. A-594,596-98. The People make much of Police Officer Kevin Outlaw's testimony that he felt the hood of Negron's car and it was still wann to the touch, as if someone had just parked the car. People's Br., p. I 3. But a car may remain warrn for a much longer period than that after being shut off. The engine of Negron's Monte Carlo normally operates at hundreds of degrees. ,See Owner's Manual,p.6-69, available 2 Fevrier also told the police the shooter was driving a four-door vehicle. A-649-5I 18 http://www.gm.calmedia/owners/manuals/1999 Chevrolet Montecarlo Manual _en_CA.pdf. In the absence of expert testimony, the People are not in the position to contend that the car couldn't have remained warrn to the touch between 2:30 a.m., when Negron testif,red he parked it, A-848, and approximately 4:00 a.m., when the officer says he touched it, A-583. In truth, this was a weak case. No forensic or ballistic evidence connected Negron to the shooting. Negron gave the police permission to search his home and car, just hours after the shooting, and the police found no contraband,nor any evidence linking Negron to the crime, in either place. A-698-99 ,701-05,709. Negron had no opportunity to dispose of any weapons, or his clothing - police had his building under constant surveillance until they arrested him. A-587, 692. Only one of f,rve eyewitnesses identified Negron, while one of them said he was not the shooter. Negron and two alibi witnesses testified that he was not the shooter. Meanwhile, defense counsel's negligence prevented Negron from presenting additional, exculpatory evidence that: (a) Negron did not resemble the perpetrator, who had facial hair, while Negron was clean shaven; and (b) that athird-party, who looked more like the shooter than Negron did, lived in the same three-unit building into which the shooter had fled, and was arrested for weapons possession hours later. But for these failures, Negron likely would have achieved a more favorable outcome. His conviction should be vacated and a new trial ordered. t9 POINT II THE PEOPLE KNEWDEFENSE COUNSEL WAS UNAWARE OF THE EXISTENCE OF THE FAVORABLE EVIDENCE UNDER BRADT AND THUS THEIR WITHHOLDING OF IT WAS INEXCUSABLE A. The Prosecutor Deliberately Withheld Information He Knew I)efense Counsel Was Unaware Of In Order To Mislead The Court Into Depriving Appellant Of His Constitutional Right To Present A Third- Party-Culpabilitv Defense The People contend in their brief that defense counsel was aware that Caban had been arrested for gun possession following the shooting and thus had the ability to discover the additional information in Caban's case that was favorable to Negron. However, the record shows the prosecutor actually lwtew that Negron's counsel, during trial, was unaware of this Brady material. For the prosecutor to continue to withhold such evidence, while simultaneously convincing the trial judge that the third-party-culpability evidence was insufficient, was inexcusable. When defense counsel made his third-party-culpability proffer, he set forth all of the evidence of Caban's guilt of which he was aware: that, as "a light- skinned Hispanic who lived at at the time of this incident," Caban fit the description of the perpetrator, who had gone into that building, and that Caban "was arrested for possession of a weapon the following day." A-737 - 38. Counsel had every incentive to cite every fact he knew to win his application. Yet he mentioned nothing about the additional information this prosecutor knew: 20 that when Caban saw the police enter , Caban fled from his apartment, broke into a neighbor's apartment, told residents to lock the door, ran up to the roof, discarded bags of guns and ammunition -- which included the same type of ammunition that was used in the Fevrier shooting -- and escaped. SeeDef. Br., pp. 14-15. Obviously, defense counsel was unaware of these facts (which his later affrrmation in support of Negron's 440 motion confirmed, A-62). The People contend that the prosecutor had no Brady obligation because defense counsel, had he looked in the right place, could have uncovered the favorable information. In other words, the People would like this Court to hold that aprosecutor may withhold Brady material he knows the defense would like to utilize, even when he lcnows the defense lawyer has failed to find it, because a more diligent lawyer might have found it. The People's position is so off base that it's difficult to know where to start. First of all, if there was additional favorable evidence relating to Caban, the defense was entitled to assume the People would disclose it. Prior to trial, Negron made a discovery demand for all Brady material in the People's possession, A-87, and, in response, the People acknowledged they were aware of their obligations under Brady and promised they would disclose such information when it became "known to the People," A-107 , 1 1 1. Defense counsel is entitled to assume the prosecutor is acting in good faith. He has no duty to "scavenge for hints of 2t undisclosed Brady material when the prosecution represents that all such material has been disclosed." Banks v. Dretke,54O U.S. 668,695 (2004). Prosecutors must be held to their promises, especially concerning Brady Second, defense counsel did not have actual notice of the contents of Caban's case file or the proceedings that occurred in his case. The People's skimpy disclosure that Caban had been arrested and charged with weapons possession did not provide notice that Caban had filed a motion to suppress, or that the People, in response, had filed a detailed affirmation providing details of Caban's flight, the identity of two civilian witnesses who had seen it, and the presence of .45 caliber bullets in his weapons stash. Just because defense counsel knew there might be additional information or evidence out there about Caban did not mean he had actual notice that such evidence would be favorable to his client. Absent such actual knowledge, the People cannot avoid their obligation to disclose such evidence under Brady. See (Jnited States v. Payne,63 F.3d 1200 (2dCir 1995) (affidavit impeaching a cooperating witness suppressed under Brady, even though affidavit was filed publicly and defense counsel knew of the witness's prosecution, because defense counsel "had no apparent reason to believe" the witness filed such an affidav\t); People v. Garcia,46 A.D.3d 461,463 (1st Dept. 2007) (witnesses' favorable statements not "available" to defense, even though 22 defense counsel was aware of witnesses' names, where defense counsel did not know "what information [the witnesses] possessed") Third, even if a more diligent defense attorney might have fully investigated Caban's case and copied the court f,rle, once the People became aware that this attorney had not done so, they were required to disclose the evidence they were sitting on. The prosecutor's obligation, this and so many other courts have said so many times, is to "seek justice, rather than conviction," People v. ll'halen,59 N.Y.2d 273,281 (1983), and once defense counsel's Primo application made clear he wanted to present a third-party-culpability defense but was unaware of the additional evidence tying Caban to the crime, the People were required to disclose it. See, e. g. , People v. Vilardi, 7 6 N.Y.2d 67 , 73 ( I 990) (heightened disclosure obligation where the defense "puts the prosecutor on notice that there is particular evidence the defense does not have and believes to be important"). Anything less would create a perverse incentive for prosecutors to exploit defense counsel's errors in derogation ofjustice - gamesmanship that has no place in our system. The prosecutor's gamesmanship should be condemned, not rewarded Notwithstanding defense counsel's proffer attrial, which is the best evidence of his knowledge of the Caban incident, and notwithstanding the People's concession they can find no evidence that they ever told the defense about the .45 caliber ammunition that Caban possessed, the People rely on Justice Lasak's 23 finding that such disclosure did occur. See People's Br., p. 60. Justice Lasak claimed that he had seen a document in the court file indicating that such disclosure was made, and he made such a finding without disclosing the document to either side, and without placing it in Negron's court file.3 There is simply no record support for this f,rnding, and it should be disregarded. See Steinmann v. Silverman, 14 N.Y.2d243,246 (1964) (rejecting affirmed finding of fact with no support in the record). Compare In re Seagroatt Flora Co., Inc.,78 N.Y.2d 439, 450 (1991) (affirmed findings of fact binding on Court of Appeals if "supported by evidence in the record"); People v. Shinkle, 51 N.Y.2d 4I7,421 (1980) (Jasen, J., dissenting) ("This court is bound bV [] affirmed findings of fact unless there is no support in the recordþr suchfindings.") (emphasis added). People v. LaValle, 3 N.Y.3d 88, 110 (2004), on which the People rely, is wildly off the mark. ln LqValle, the defendant alleged that the People suppressed Brødy material consisting of statements by two individuals who claimed that they were drinking and using drugs with the defendant for several hours before the crime. However, this information, the Court found, was actually known to the defense. Defense counsel admitted that, prior to trial, he knew that the witnesses had given statements, he had the witnesses' names and addresses, and he "believed that the statements dealt with use of alcohol and drugs ...." Id. The Court also 3 Moreover, the Clerk of this Court has inspected the case flrle and informed us that no property vouchers (let alone one containing such information) appear in the file. 24 relied on the defendant's own knowledge "that he drank alcohol and took drugs with" the two witnesses. Id. Thus,in LaValle,boththe defendant and his attorney lcnew the actual substance of the material they claimed the People had suppressed. Here, however, neither Negron nor his attorney knew the specific contents of Caban's weapons cache, or the manner in which Caban acted when the police arrived at his building.a B. The Sunnressed Evidence Of ird-Partv Guilt Was Material The People, in their brief, do not dispute that the materiality standard of People v. Vilardí, 76 N.Y.2d at77, applies to this case. Thus, as we have argued, the Appellate Division's application of the more rigorous federal standard was effoneous. See Def. Br., pp. 38-39. Under the correct standard, which the Appellate Division did not use, Negron should receive a new trial. There is at least some "reasonable possibility" that the suppressed evidence, had it been timely disclosed, would have resulted in a more favorable outcome to the trial. See Vilardi, 76 N.Y.2d at 77 . The People contend that the undisclosed evidence "would not have enhanced [Negron's third-party-guilt] application," People's Br., p.63, because, "[h]ad Caban actually been the shooter, he would not have waited hours and hours a The People also cite United Stqtes v. Aichele, g4l F.2d76I (gthCir. 1991), United States v. IVilson, 901 F .2d 378 (4th Cir. 1990), and Gotti v. United States, 622 F . Supp. 2d 87 (S.D.N.Y. 2009), but these cases are also inapposite. In each, the courts rejected the defendants' Brady challenges because the undisclosed material was not even in the government's control. 25 ... to dispose of the ammunition that could link him to the crime. Instead, he would have done what defendant - the actual shooter - did, and dispose immediately of any evidence that would tie him to the shooting." Id. However, we know that Negron did not dispose of any evidence. Police Officer Kevin Outlaw testified that, just after the shooting, "[v]arious" units of the NYPD arrived at the scene and "were stationed outside of ." A-587. The building remained under police surveillance until Negron accompanied police to the precinct. A-692. Obviously, if Negron had "disposed" of anything, the police would have witnessed it.5 As for Caban, he tried to avoid drawing attention to himself until he concluded that, with the police approaching, he had no choice. At that point, he made a desperate dash to discard the evidence and escape. The People "contrast" the evidence of third-party guilt in this case with the showing this Court found sufficient in People v. Primo,96 N.Y.2d at 353. People's Br., pp. 64-65. However, Primo only laid out the test for the admissibility of third-party-culpability evidence, not the bare minimum factual connection a defendant must make between the crime and the third-party. See Primo,96 N.Y.2d at355. Under Primo,Negron needed only to show, as with any evidence, that the evidence was relevant and that its probative value was not outweighed "by the s And, as noted, the police found absolutely no evidence linking Negron to the crime in Negron's home or car, or anywhere else. See p.19, suprø 26 prospect of trial delay, undue prejudice to the opposing party, confusing the issues or misleading the jury i' Id. The People are wrong to argue this case is "analogous" to People v. Schultz, 4 N.Y.3d 521 (2005). See People's Br., p. 65. In Schultz, the proffered connection between the crime and the third-party was that the third-party bore some resemblance to the defendant and had committed similar robberies miles from the location of the robbery with which the defendant was charged. 4N.Y.3d at 526.6 By contrast, Negron's proffer, when considered together with the Brady material that the People withheld, was much stronger. Caban had fled his apartment with weapons and ammunition when police approached his building to investigate this crime, just hours after it happened. This apartment was one ofjust three contained in the building into which the perpetrator had gone after the shooting. The contraband Caban abandoned included ammunition of the same caliber used in the Fevrier shooting. Caban was so desperate to escape from the police and dispose of his weapons and ammunition that he forced his way into a neighbor's apartment and then onto the roof of that neighbor's apartment building. Lastly, Caban, who 6 In Schultt, the defendant - after trial - obtained an affidavit from the sole identification witness indicating that she was "90 percent" sure that the third-party was the true perpetrator. 4 N.Y.3d at 527 . However, the defendant did not present this evidence at trial in support of his Primo application. The only evidence the defendant proffered with his third-party-guilt application was that the third-party had committed robberies in the area and resembled defendant. Id. After trial, the defendant submitted the witness's affidavit in support of a 440.10 motion based on newly discovered evidence. Id. Defendant's 440 motion was then consolidated with his direct appeal. However, the Court did not consider defendant's new evidence when determining, in connection with the defendant's direct appeal, that the trial court's Primo ruling had been correct. 27 was the same height, weight, age, ethnicity, and skin tone as Negron, had facial hair, and thus more closely resembled the perpetrator's appearance than did Negron. SeeDef. Br., pp. 39-44 The People next argue that, even if the jury had heard this evidence of Caban's guilt, there is no reasonable "possibility" of a different outcome. People's Br., p. 68. They contend that "there was nothing to connect any of the weapons or ammunition frecovered from Caban]" to the crime and Caban's attempt to hide his weapons cache "is consciousness of guilt only as to his own possession of illegal guns ... ." Id.7 However, Negron was not required to prove beyond a reasonable doubt that Caban was the shooter, just that there was a reasonable possibility he was and thus there was reasonable doubt of Negron's guilt. There was sufficient evidence of this. Caban frantically disposed of the same caliber ammunition, as well as a weapons cache, whereas Negron was not observed hiding anything, was not found with any contraband, and fully cooperated with police. \Mhile it was possible Caban's consciousness of guilt did not include the shooting but other crimes, it was also reasonably possible, under all the circumstances, that being linked to the shooting was exactly what motivated his desperate behavior. By 7 The People analyze both pieces of withheld evidence individually for prejudice, see People's Br., pp. 67-69, but the Supreme Court has made clear that a reviewing court, in making this determination, must analyze multiple pieces of undisclosed material collectively. See Kyles v. [4rhitley, 5 14 U.S. 419, 436 (1995). 28 depriving the defense of the evidence against Caban, the People prevented the defense from making its best argument and letting the jury decide.s Finally, it is diffrcult to imagine how, in light of this record, there is no reasonable possibility that the jury would have reached a different result if it heard the evidence of Caban's possible guilt. No physical, forensic, or ballistics evidence tied Negron to the shooting. Of five witnesses to the crime, only one could identiff Negron - and only after the police subjected Negron to an extraordinarily suggestive lineup procedure. See Def. Br., pp.6-7. Meanwhile, Caban fit the description of the shooter more closely than Negron; was similar to Negron in appearance; lived in the same three-apartment building into which the shooter fled after the crime; was arrested hours after the shooting for weapons possession (including the same caliber ammunition used in the Fevrier shooting); and fled in a panic when he saw the police approach his home later the same day of the crime. Despite this compelling evidence of Caban's possible guilt, the police never pursued him as a suspect. Given the scant evidence against Negron, it is clearly possible that the jury would have reached a different result if it had heard the evidence linkingCabanto the crime. 8 The People point out in their brief (p . 64) thata ballistics expert concluded that the .45 caliber firearm found in the yard behind Caban's building was not the gun used in the shooting, A-I45- 46,but this did not exclude the possibility that the ammunition used in the Fevrier shooting came from Caban's cache of .45 caliber ammunition. 29 CONCLUSION Negron's defense was doomed by his attorney's failure to investigate and present readily-available evidence that Negron was misidentified, and that someone else was the true shooter. The People aggravated the prejudice Negron suffered by suppressing additional evidence of this third-party's guilt when they knew the defense was interested in it and didn't have it. Try as they might, the People cannot twist this weak case into an "overwhelming" one in order to minimize defense counsel's inexcusable errors, or their own Brady violation. Accordingly, Negron's conviction should be vacated, and a new trial ordered before a different judge. Respectfully submitted, g B. RUDIN Offices of Joel B. Rudin, P.C. Fifth Avenue, Tenth Floor New York, New York 10020 (2r2) 7s2-7600 jbrudin@rudinlaw.com Attorney þr Defendant-Appellant Dated: New York, New York January 9,2015 30 COURT OF APPEALS STATE OF NEW YORK .----------x TITE PEOPLE OF THE STATE OF NEW YORK, Appellee, -against- JULIO NEGRON, Defendant-Appellant. : APL-2014-00230 AFFIDAVIT OF SERVICE BY OVERNIGHT AND REGULARMAIL Ind. No. 398/50 (Queens County) X STATE OF NEW 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, P.C., 600 Fifth Avenue, 1Oth Floor, New York, New York 10020, am not aparty to this action and am over the age of 18 years. On January 9,2015, I served by Federal Express Overnight Mail Service, and Regular Mail Service (as indicated) upon the following parties, true and correct copies of the Repty Brief for I)efendant-Appellant, by depositing true and correct copies thereof with an offrcial Federal Express Offtce, 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: ) ) SS LatraRoss, Esq. Assistant District Attorney Queens County 125-01 Queens Boulevard Kew Gardens, New York ll4I5 [3 copies each of the Brief and Appendixl OVERNIGHT MAIL Sworn to before me this 9th day of J 20ls t-, Mr. Julio Negro DIN: 06-A-2571 Green Haven Correctional Facility P.O. Box 4000 Stormville, New York 12582-4000 [1 copy of the Briefl REGULAR MAIL , PETERS