The People, Respondent,v.Michael Johnson, Appellant.BriefN.Y.February 6, 2018To be argued by DE NICE POWELL (J 5 Mif>utes) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MICHAEL JOHNSON, Defendant-Appellant. BRIEF FOR DEFENDANT -APPELLANT DE NICE POWELL q[Counsel November 30, 2016 APL-2016-00167 LYNNW.L.FAHEY APPELLATE ADVOCATES Attorney for DefendanH\ppe!lant 111 John Street, 9th Floor New York, NY 10038 (212) 693-0085 FAX: (212) 693-0878 INDEX PRELIMINARY STATEMENT . 1 QUESTIONS PRESENTED 3 STATUTORY PROVISIONS INVOLVED 3 SUMMARY OF ARGUMENT 5 I 5 II 7 III 8 STATEMENT OF FACTS . . 10 Introduction . . . . 10 The Motion to Suppress Statements and the Huntley Hearing . . . . . . . . . . . . . 11 The Suppression Arguments and Decision 15 The People's Case at Trial The Carjacking The Investigation Cooperator Carlos Nicholls's Testimony The Uncharged Crimes Evidence . . . . . . The Court's Denial of a Missing Witness Charge The Defense Case . Defense Counsel's Summation The Prosecutor's Summation . Verdict The Appellate Division Decision . . 17 17 20 22 25 27 . . 29 29 • • 30 30 31 ARGUMENT POINT I ABSENT ANY EVIDENCE OF WHAT OCCURRED OVER THE MORE THAN 25-HOUR PERIOD DURING WHICH THE POLICE DETAINED AND INTERROGATED APPELLANT BEFORE HE INCULPATED HIMSELF, THE PEOPLE FAILED TO CARRY THEIR HEAVY BURDEN OF PROVING THAT APPELLANT' S STATEMENTS WERE VOLUNTARY . . . . . . . . . 33 A. The People Bear the Heavy Burden of Proving that a Defendant's Statement was Made Voluntarily . . . . . . . . . . . . . . . 33 B. The People Failed to Prove, Under the Totality of Circumstances, That Statements Appellant Made More Than 25 Hours After His Arrest Were Voluntary . . . . 36 POINT II WHEN THE SHOOTER'S IDENTITY WAS THE CRITICAL ISSUE, THE COURT ABUSED ITS DISCRETION IN DENYING DEFENSE COUNSEL'S REQUEST FOR A MISSING WITNESS CHARGE WHEN THE PEOPLE FAILED TO CALL THE COMPLAINANT'S ADULT SON WHOSE DESCRIPTION OF THE ASSAILANT'S HEIGHT DIFFERED FROM APPELLANT'S HEIGHT AND THE HEIGHT ESTIMATES BY THE OTHER EYEWITNESSES . . . . . . 53 POINT III APPELLANT'S FAIR TRIAL RIGHT WAS IRRETRIEVABLY DAMAGED BY THE PROSECUTOR'S BLATANT VIOLATION OF THE COURT'S RULING, WHICH RESULTED IN THE JURY LEARNING THAT APPELLANT ALLEGEDLY COMMITTED NUMEROUS UNCHARGED CRIMES WITH THE PEOPLE' S COOPERATING WITNESS, SUGGESTING HIS PROPENSITY TO COMMIT THE CRIMES FOR WHICH HE WAS BEING TRIED . . . . . . . . . . . . . . 59 CONCLUSION . . . . . . . . . . . . . . . . . . . . . 66 ii TABLE OF AUTHORI TIES CASES : Ashcraft v. Tennessee, 322 U.S . 143 (1944) Berkimer v . McCarty, 4 68 U. S. 420 (1984) Clewis v. Texas, 386 U.S. 707 (1967) Culombe v. Connecticut, 367 U.S. 568 (1961) Davis v . North Carol i na, 382 U. S. 737 (1966) Dickerson v. Uni ted St a t es, 530 U.S. 428 (2000) Fare v. Michael c . , 442 u .s . 707 (1979) .. Greenwald v . Wisconsin , 390 u.s. 519 (1968) Haley v. Ohio, 332 u.s . 596 (1948) Mincey v. Arizona, 437 u.s. 385 (1978) Miranda v. Arizona, 384 u.s. 436 (1966) People v. Al ex, 265 N.Y. 192 (1934) . People v. Allweiss, 48 N.Y. 2d 40 (1979) People v. Anderson, 42 N.Y.2d 35 (1977) People v. calabria, 94 N.Y . 2d 519 (2000) People v. carborano, 301 N. Y. 39 (1950) People v . Cedeno, 27 N.Y.3d 110 (2016) People v. Crimmins, 36 N. Y. 2d 239 (1975) People v. Cunningham, 49 N. Y.2d 203 (1980) People v . Davis, 58 N.Y.2d 1102 (1983) People v. Dodt, 61 N.Y . 2d 408 (1984 ) People v. Erts, 73 N.Y.2d 872 (1988) People v. Gonzalez, 68 N. Y.3d 424 (1986) iii 5,34 . . 45 5,51 5,34,51 . . 3 7 35,45 46 . 43 51 38 5,39 . 47 . 60 5,34,35,39, 4 0,42,43 62 62 9,62,64 51 38 . 62 . 44 . 58 6,7,8,55,58 Peo:gle v. Guilford, 21 N.Y.3d 72 (2013) . . . 5,6,35,36,41, 44,54,55,57 Peo:gle v. Hall, 18 N.Y.3d 122 (2011) . . 57 Peo:gle v. Holland, 48 N. Y .2d 861 (1979) 35,39 Peo:gle v. Huntley, 15 N.Y. 2d 72 (1965) 35,39 Peo:gle v. Jackson, 7 N.Y. 2d 142 (1959) . . . . . . 64 Peo:gle v. Jin Cheng Lin, 26 N.Y.3d 701 (2016) 35,39,42, 44,45,46,47,48,49,50 Peo:gle v. Johnson, 139 A.D.3d 967 (2d Dept. 2016) 43,44 Peo:gle v. Keen, 94 N.Y.2d 533 (2000) . . . 6,8,54,55 Peo:gle v. Kitching, 78 N.Y.3d 532 ( 1991) 6,7,53,55,5B Peo:gle v. Macana, 84 N.Y. 3d 173 (1994) 55,58 Peo:gle v. Mateo, 2 N.Y.3d 383 (2004) . . . . . . 35 Peo:gle v. Molineux, 168 N.Y. 264 (1901) 8,60 Peo:gle v. Morris, 21 N.Y.3d 588 (2013) 8,60 Peo:gle v. Paulin, 70 N.Y. 3d 685 (1987) 58 Peo:gle v. Prado, 4 N.Y.3d 725 (2004) . . . . . . . 51 Peo:gle v. Ramos, 99 N. Y.2d 27 (2002) 47 Peo:gle v. Robinson, 273 N.Y. 438 (1937) 9,63,64,65 Peo:gle v. Savinon, 100 N.Y.2d 192 (2003) . . . . . . 6,53 Peo:gle v. Tabarez, 69 N.Y.2d 663 (1986) . 58 Peo:gle v. Thomas, 22 N.Y.3d 629 (2014) 5,34,35,37,39,44 Peo:gle v. Wilson, 64 N.Y.2d 634 (1984) . 55 Peo:gle v. Withers:goon, 66 N.Y.2d 973 (1985) 36 Peo:gle ex rel. Maxiam v. Brown, 77 N.Y.2d 422 (1991) 47 Rogers v. Richmond, 365 U.S. 534 (1961) Sims v. Georgia, 389 U.S. 404 (1967) iv . 5,34 . 43 Turner v. Pennsylvania, 338 u.s. 62 (1949) 5,37,51 Watts v. Indiana, 338 U.S. 49 (1949) 39,51 CONSTITUTIONAL PROVISIONS AND STATUTES N.Y. Const., art. I, §6 . 5,53 U.S. Const., Amend. V 5 u.s. Const., Amend. XIV 34,53,59 C.P.L. §60.45 . 5,11,34 C.P.L. §140.20 46,48 OTHER AUTHORITIES Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051 (April, 2010) 40 Saul M. Kassin, et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3 (February, 2010) . . . . . . . . . . . . . . . . 6, 40 v COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MICHAEL JOHNSON, Defendant-Appellant. PRELIMINARY STATEMENT By permission of the Honorable L. Priscilla Hall, Associate Justice of the Appellate Division, Second Department, granted August 5, 2016, Michael Johnson appeals from an order of that court, entered May 18, 2016, affirming a judgment of the Supreme Court, Queens County, rendered October 12, 2011. He was convicted, after a jury trial, of second-degree attempted murder, first- and second-degree robbery, first-degree assault, first- and second-degree criminal possession of a forged instrument, fifth- degree criminal possession of stolen property, and third-degree unauthorized use of a vehicle, and sentenced to a prison term aggregating 32~ years. 1 On October 20, 2016, this Court granted appellant poor person's relief and assigned Lynn W. L. Fahey as counsel on appeal. The People's failure to prove beyond a reasonable doubt that appellant's statements were made voluntarily was preserved by defense counsel's motion to suppress and arguments at the hearing, and the court's decision (A 133-136, 140, 143-144, 149-151, 1367- 1383) . 1 The court's erroneous denial of a missing witness charge was preserved by defense counsel's timely charge request and the court's denial of it (A 1126-1127, 1187-1189). The claim that a fair trial was denied when the prosecutor violated the court's preclusion ruling barring uncharged crime evidence was preserved by defense counsel's objection and mistrial motion (A 716-720) . Appellant remains incarcerated pursuant to the judgment. He had no co-defendants. 1 Numbers in parentheses preceded by "A" refer to the Appendix. 2 QUESTIONS PRESENTED 1. Absent any evidence of what occurred over the more than 25-hour period during which the police detained and interrogated appellant before he inculpated himself, did the People fail to carry their heavy burden of proving that appellant's statements were voluntary? 2. When the shooter's identity was the critical issue, did the court abuse its discretion in denying defense counsel's request for a missing witness charge when the People failed to call the complainant's adult son whose description of the assailant's height differed from appellant's height and the height estimates by the other eyewitnesses? 3. Was appellant's fair trial right irretrievably damaged by the prosecutor's blatant violation of the court's ruling, which resulted in the jury learning that appellant allegedly committed numerous uncharged crimes with the People's cooperating witness, suggesting his propensity to commit the crimes for which he was being tried? STATUTORY PROVISIONS INVOLVED C.P.L. §60.45 Rules of evidence; admissibility of statements of defendants 1. Evidence of a . . statement made by a defendant with respect to his participation or lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made. 3 2. A confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him: (a) By any person by . means of . improper conduct or undue pressure which impaired the defendant's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; (b) By a public servant engaged in law enforcement activity . (i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself; or (ii) in violation of such rights as the defendant may derive from the constitution of this state or of the United States. * * * C.P.L. §140.20 Arrest without a warrant; procedure after arrest by police officer 1. Upon arresting a person without a warrant, a police officer, after performing without unnecessary delay all recording, fingerprinting and other preliminary police duties required in the particular case, must . without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question. * * * 4 SUMMARY OF ARGUMENT I The Due Process Clauses of the United States and New York Constitutions forbid conviction by means of a defendant's coerced confession. U.S. Const. Amends. V, XIV; N.Y. Const., art. I, §6; Rogers v. Richmond, 365 U.S. 534, 540-541 (1961); Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944). A defendant's statement is involuntary when it is not the product of his "free and unconstrained choice." Culombe v. Connecticut, 367 U.S. 568, 602 (1961); C.P.L. §60.45(2) (a). When the police obtain a statement by overcoming a defendant's free will or critically impairing his capacity for self-determination, the statement must be suppressed. Rogers, 365 U.S. at 544; People v. Thomas, 22 N.Y.3d 629, 644-645 (2014); People v. Guilford, 21 N.Y.3d 205, 206 (2013). Consistent with numerous studies establishing that prolonged incommunicado detention and interrogation exert psychological pressure on a suspect, overcoming his desire to remain silent, courts have repeatedly condemned such tactics as violative of due process. Clewis v. Texas, 386 U.S. 707, 711 (1967); Miranda v. Arizona, 384 U.S. 436, 450-456 (1966); Culombe, 367 U.S. at 602; Turner v. Pennsylvania, 338 U.S. 62, 65 (1949); Guilford, 21 N.Y.3d at 206; People v. Anderson, 42 N.Y.2d 35, 40-41 (1977); see, ~., 5 Saul M. Kassin, et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 16 (February, 2010) ("prolonged isolation from significant others" "constitutes a form of deprivation that can heighten a suspect's distress and incentive to remove himself or herself from the situation"). The People have the heavy burden of proving beyond a reasonable doubt, based on a "totality of the circumstances," that a defendant's statement was made voluntarily. Guilford, 21 N.Y.3d at 208. Here, the Huntley hearing evidence demonstrated that, following appellant's warrantless arrest, the police detained him incommunicado in a precinct room for more than 25 hours, during which officers from multiple law enforcement agencies interrogated him before Queens Detective John Roberts questioned him and obtained the statements regarding a carjacking at issue. The People failed to present any evidence of the conditions of appellant's prolonged confinement or what occurred during any interrogation session before that by Roberts. They failed to show whether appellant made any unwarned statement about the instant crimes, invoked his rights to counsel or silence, was provided basic human sustenance or bathroom access, or slept. Given these 6 critical gaps in the People's proof, appellant's statements should have been suppressed. II A missing witness charge informs the jury that it may "draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events." People v. Savinon, 100 N.Y.2d 192, 196-197 (2003). The charge must be provided when the uncalled witness (1} is "knowledgeable about a material issue ... already in the case"; (2) would "naturally be expected to provide noncumulative testimony favorable to the party against whom the charge is sought"; and (3) is "available to the party opposing the charge." People v. Kitching, 78 N.Y.2d 532, 536 (1991); People v. Gonzalez, 68 N.Y.2d 424, 427 (1986). Here, where identity of the perpetrator was the key issue, defense counsel easily carried her prima facie burden of demonstrating entitlement to the charge. Mark Miller, the complainant's adult son, witnessed the masked gunman carjack and shoot his father, and was, therefore, knowledgeable about the key, material issue in the case, the assailant's identity. As the complainant's son, he would be expected to testify favorably to the 7 People. People v. Keen, 94 N.Y.2d 533, 539 (2000); Gonzalez, 68 N.Y.2d at 429. The People fell far short of demonstrating that Mark's description was "consistent" with that given by the eyewitnesses who testified at trial and therefore cumulative, as the People argued. Shortly after the crime, Mark described the gunman as 6 1 1 11 or 6 1 2 11 , when appellant was 5 1 10 11 , and none of the prosecution eyewitnesses described the assailant's height when interviewed by the police shortly after the incident. Thus, Mark' s height description, which was significantly taller than the description other eyewitnesses gave at trial, clearly would not have been cumulative. Nor is a witness's equal availability to the defense a proper basis for denying a missing witness charge. People v. Hall, 18 N.Y.3d 122, 131 (2011). Therefore, the court improperly denied defense counsel's missing witness charge request. III Uncharged crime evidence is inadmissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged. People v. Molineux, 168 N.Y. 264, 293 (1901); see also People v. Morris, 21 N.Y.3d 588, 594 (2013). Here, the court explicitly precluded the prosecutor from introducing any 8 evidence of uncharged crimes appellant allegedly committed with cooperating witness Carlos Nicholls. Nevertheless, the prosecutor elicited Nicholls's detailed testimony describing how he and "Associate A," who was obviously appellant, committed a large number of car thefts and forgeries - the very crimes involved in this case. Although the court attempted to cure the resulting damage by instructing jurors to disregard the letter "A" in Nicholls's testimony about "Associate A," the instruction was insufficient to cure the prejudice. See People v. Cedeno, 27 N.Y.3d 110, 117 {2016} (co-defendant's extrajudicial statement naming another defendant is "so prejudicial that limiting instructions cannot work"} . Indeed, the instruction risked making the error worse. See Cedeno, 27 N.Y. 3d at 120-121 (no doubt that defendant was person redacted from statement, "particularly after the court instructed the jury that it was not to speculate about the redactions"}. Because the uncharged crime evidence irretrievably prejudiced appellant's right to a fair trial, the court abused its discretion by denying defense counsel's mistrial motion. People v. Robinson, 273 N.Y. 438, 444-447 (1937}. 9 STATEMENT OF FACTS Introduction Soon after Milton Miller parked his car outside his Queens home at night and walked toward his front door holding his keys, a masked gunman accosted him from behind, snatched his keys, and backed away. When Miller pursued and berated him, the gunman shot Miller and drove away in Miller's car. Several hours later, the police found the stolen car. Fingerprints and DNA recovered from the car were not appellant's. Miller identified appellant in a lineup several months later and again at trial as the perpetrator. Miller's wife and a neighbor witnessed the shooting. The parties stipulated that, when they spoke to the police soon after the incident, the neighbor was unable to provide any description apart from the gender and relative ages of Miller and his assailant, and, apart from the assailant's clothing and race, Miller's wife could not describe him. The People failed to call at trial Miller's adult son, who observed the masked man shoot his father. He called 911 and gave the police a height description of the perpetrator that materially differed from that given by other eyewitnesses for the first time at trial and from appellant's height. 10 The People also called a witness who, after being arrested more than a year after the shooting on various federal offenses, gave the gun used to shoot Miller to the police. Pursuant to a cooperation agreement, that witness, a prolific criminal who acknowledged that he began his criminal career when he was only 15 years old and was currently facing up to 90 years in prison and more than $1,000,000 in restitution in his federal case, testified against appellant. The Motion to Suppress Statements and the Huntley Hearing Defense counsel moved to suppress appellant' s statements, asserting, inter alia, that they were made involuntarily in violation of C.P.L. §§60.45(2) (b) (i) and (ii), and the United States Constitution. Counsel contended that appellant' s statements were made "some twenty-six to twenty seven hours after his arrest," a period during which appellant was unnecessarily being held in custody for purposes of interrogation without food, drink, water and sleep without being brought to court for purposes of arraignment (A 1380) . At the Huntley hearing, Detective John Roberts testified that a masked man carjacked Milton Miller in front of his home on May 11, 2009. Three days later, Roberts, who was assigned to investigate the case, and several other detectives followed 11 appellant, who was driving a GMC Arcadia and violating traffic regulations. At a Brooklyn gas station, Roberts asked appellant for his driver's license and "paperwork" {A 20-22,.27, 54-55, 58- 59, 84). When appellant said he had no license and was not an authorized driver of his rental car, Roberts handcuffed and searched him. He recovered a Louisiana driver's license and JFK identification card bearing appellant's photograph and the name "Anis Saleh"; a New York non-driver identification card bearing the name "Michael Johnson," which appellant said was his real name; two sets of BMW electronic car keys; and money {A 23-25, 67). The bills all bore the same serial number (A 26, 45-46) . 2 Roberts transported appellant to a Queens precinct around 4:00 p.m. and placed him in an interview room equipped with a table and chairs. He was not cuffed to a wall or chair (A 71, 77, 87-88). 3 Roberts recalled "arresting" appellant at 7:00 p.m. (A 100). The next morning, Roberts took the BMW keys to a car dealer and learned that one set matched Miller's stolen car and the other matched a stolen car from Suffolk County (A 27-28) . Around 2:00 p.m., 2 Secret Service agents subsequently concluded the money was counterfeit; Port Authority agents determined that the JFK card was fake; and Auto Crime officers determined that the rental car had been stolen and its VIN plate number altered (A 25, 45-46). 3 Although Roberts was responsible for recording appellant's arrival time, he failed to do so (A 118-119) and testified from memory. 12 Miller, who was in the hospital receiving treatment for gunshot wounds he had sustained during the carjacking, identified appellant in a photo array as his assailant (A 30-32, 34). Meanwhile, law enforcement agents from the Port Authority Police Department, the Secret Service, and the Suffolk County Police Department interrogated appellant (A 72-75) . Port Authority officers arrived at the precinct at 2:00p.m. and Suffolk officers around 7:30p.m. (A 75). Roberts testified that he was absent when Port Authority officers questioned appellant and did not know whether he invoked his right to counsel or any of the officers who questioned him Mirandized him (A 72-73, 98-99) . 4 The People did not present any evidence of what occurred during any of these interrogation sessions. Roberts did not know whether Auto Crimes officers also interrogated appellant (A 75-76, 79). At 8:30p.m. on May 15, more than 25 hours after appellant's arrest, Roberts interrogated him (A 35, 77-78). After waiving his Miranda rights, appellant said orally and in a signed written statement that he was not the shooter but was "present" when a man 4 The prosecutor gave the court a September 12, 2010, Suffolk County court decision finding appellant's statement to Suffolk County officers voluntary as proof that Suffolk County officers Mirandized appellant and did nothing "improper" (A 143). The instant hearing court agreed with defense counsel that the decision, which did not mention the "dates and times" of that questioning, was not law of the case (A 128-129, 144). 13 he knew as "G" carjacked and shot Miller and drove "G" from the scene (A 35-43, 79, 1386). He said he got "involved" because he needed money to assist his girlfriend Rochelle, who had been arrested in Suffolk County, and he had the Louisiana license and JFK identification card because he had a felony record (A 46-47) . Appellant neither requested counsel nor mentioned that his lawyer's business card was in his wallet (A 101) . Roberts periodically "checked up" on appellant before he was taken to Central Booking, but failed to record appellant's status in the prisoner's log as required. He initially testified that appellant remained in the same locked interrogation room from his arrival at the precinct on May 14 to his departure for arraignment on May 16 (A 87, 120-121). He later testified, however, that he did not recall whether appellant remained in the room overnight and did not know when appellant left the precinct for arraignment (A 100, 126). Roberts admitted, however, that he delayed arraignment for more than 24 hours in order to complete the "investigation [] going on" and give every law enforcement agency who wished it an opportunity "to see" appellant (A 78) . According to the CJA interview report, it interviewed appellant at Central Booking at 1: 19 a.m. on May 16 (A 122-123) , more than 3 0 hours after his arrest. 14 The People elicited no evidence that appellant was fed or given access to a bathroom between his May 14 arrival at the precinct and May 16 departure for arraignment. Nor did they adduce any evidence that appellant slept during the 25 to 33 hours he was detained in the precinct. The Suppression Arguments and Decision Defense counsel argued that appellant's statements to Detective Roberts were involuntary: police held appellant in a locked room for at least 24 hours and "possibly even" longer since Roberts failed to document any details (A 133-136) . Counsel further argued that, during the extended pre- arraignment delay, appellant was interrogated by different agencies and that Detective Roberts went in several times [to interrogate appellant] . And several of the other detectives at the precinct went in and out. * * * [S]ome Suffolk County detectives interviewed him as well. So he has been at the precinct all of this time. Over 24 hours interrogated by various agencies asking for a lawyer. And one was not provided. And instead they continued to interrogate my client and . take a statement that was not written by him (A 134). The prosecutor responded that she proved appellant's statements were voluntary because he made them after he waived his Miranda rights to Detective Roberts (A 143) . It was not relevant 15 that Roberts failed to keep a log of appellant's precinct confinement because, "in grand scheme of this case," there was "a lot going on . . which doesn't exist in usual cases" {A 141). After appellant's arrest, the police took "steps in the right direction to actually build a case against him" {A 140) . The statements' contents also demonstrated that they were voluntary because appellant "distance[d] himself from the crime" using words his interrogators would not have "suggested to him" {A 143-144). The hearing judge found that, after Roberts arrested appellant, he transported him to the 105th Precinct, where he "was in custody" {A 149) . Determining that the People failed to prove whether appellant was detained in a holding cell or interrogation room, the court found that law enforcement agents from the Secret Service, Port Authority, and Suffolk County questioned him "the night of his arrest into the early morning hours of the next day" {A 149-150). Some time thereafter, Roberts interrogated appellant, who, after waiving Miranda rights, knowingly and voluntarily made inculpatory statements. It denied suppression {A 151). 16 The People's Case at Trial The Carjacking After his termination from the New York City Police Department based on alleged misconduct involving theft, Milton Miller worked as a chauffeur for Cushman and Wakefield. On May 11, 2009, Miller arrived home around 10:00 p.m. and parked his employer's black BMW in front of his Queens home on 132nd Road, where he lived with his wife, Carmen Miller, and son, Mark, who was 42 at the time of trial (A C.Miller: 283-286; M.Miller: 1034-1142). As Miller approached his front door, a man accosted him from behind and, pointing a silver .380 caliber gun to his head, demanded his money and car keys (A M.Miller: 1043-1044, 1071, 1075-1076). When Miller said he had no money, the man snatched his keys and backed away (A M.Miller: 1043-1044). Miller followed the man into the street, berating him (A M.Miller: 1044-1047). Standing two arm-lengths away, the man shot him in the chest (A M.Miller: 1045) . Miller kept advancing toward the gunman, who fired about seven more shots before driving the BMW away (A M.Miller: 1045-1046). Miller's neighbor, Michael Keirsey, was outside a few houses away when he heard Miller and another man speaking in an "aggressive" tone, then several shots; Keirsey ducked into his own car for safety (A Keirsey: 322-324, 333). 17 Miller's wife heard a muffled conversation outside shortly after he arrived home (A 289) . She opened the front door and saw him approaching a man who was backing away toward the street. She asked Miller if he was "okay." Without responding, he followed the man into the street. She called out to Mark for help, heard five to eight shots, and ran to assist Miller (A 290-295) . 5 The parties stipulated that, when interviewed that night, Mrs. Miller told a detective that the gunman was a black man, wearing a black jacket, pants, and baseball cap, but she "didn't see [his] face and [] could not describe him" (A 1198). Nevertheless, she testified at trial that the gunman was 5 1 8" to 5 1 10" and shorter than her 5'11" husband (A C.Miller: 301-302). Miller testified that the gunman was African-American, in his mid-20 1 s, about 5 1 10", with a medium build, medium to dark complexion, and all black clothing. A mask covered his entire face except for his "pudgy" nose, cheeks, and "oval" dark brown eyes (A M. Miller: 1051-1055, 1071-1072) . When he spoke to an officer immediately after the shooting, he did not describe the assailant's height (A 1092). 5 Dr. Jeffrey Chan treated Miller for two gunshot wounds - one to the chest, which if untreated would have led to his death, and one to his abdomen (A 683-690, 700). 18 A street lamp and security light on Miller's house illuminated the area, but Miller did not know if the man was wearing gloves because it was "dark"; if the man wore "lighter gloves," Miller would have noticed them (A M.Miller: 1070, 1073, 1083). He identified appellant in a lineup conducted about seven months after the shooting and again in court as the gunman (A M.Miller: 1047, 1076-1077) . Miller claimed that the entire incident took five minutes (A M.Miller: 1071) . Klersey testified that the shooting happened "pretty quick[ly]" (A 338). Minutes later, he was unable to give a detailed description of the shooter (A 340) . The parties stipulated that, on the night of the shooting, Keirsey told an officer that he was unable to describe either Miller or his assailant except that Miller was "like an older gentleman," and the assailant was "like a young man" who "shot directly at the older man, who then charged toward the gunman, who then, in turn, fired several more shots" (A 1199) . Nevertheless, Kiersey testified at trial that the gunman was a "medium" complexioned black man, 5'9" to 5'10" tall, in his 20's, with a medium build (A 325-326). The gunman was shorter than Miller, who 6'2" to 6'4" (A 324-325). 19 The Investigation The police recovered eight .380 caliber casings and a deformed bullet on the street in front of Miller's house and two deformed bullets in a neighbor's fence (A Det. Thomas Jacob: 353-354; Det. David Hernandez: 413). The deformed bullets were all fired from one gun (A Det. Gregory DiCostanzo: 1102-1103, 1106, 1112-1113). About 3~ hours after the shooting, Detective John Roberts found Miller's stolen BMW parked on 234th Street, five minutes away from Miller's home. The car's GPS system had been tampered with (A Det. John Entenmann: 443, 446; Det. Roberts: 813, 884-885). Fingerprints recovered from the car were not appellant's (A Det. Entenmann: 460-462; Det. Ronald Stanulis: 512). Miller's DNA was on the steering wheel (A Criminalist Craig O'Conner: 487, 490). Three days later, Roberts saw appellant driving a black GMC Arcadia on Fulton Street in Brooklyn, making several lane changes without signaling. Roberts stopped him and determined that he did not have a valid license, and appellant acknowledged that the Arcadia was a rental car he was not authorized to drive. 6 Appellant had a fake Louisiana driver's license and JFK employee identification bearing his photograph and the name Anis Saleh, and 6 Five months earlier, "Byron Miller" had rented the Arcadia, but never returned it; its VIN number had been changed, but neither its interior nor its exterior showed any sign of damage (A Anthony Belina: 963-966; Det. John Wright: 987-994, 966). 20 Miller's car key (A Roberts: 818-851, 902, 912; David Lubertazzo: 957-960; Det. Curtis King: 975-976). He also had approximately $2,100 in fake $20 bills (A Roberts: 824; Kris Tatara: 946-947). Appellant was 25 years old, 5' 10", and 170 pounds (A Roberts: 869) . The next day at the hospital, Miller claimed he saw his assailant's face, but did not describe him {A Roberts: 847-848, 927; M. Miller: 1087-1088). As to appellant's oral and written statements, Roberts essentially repeated his suppression hearing testimony. In the written statement, which was entered into evidence, appellant claimed that, on the night of the carjacking, "G" called and told appellant to meet him at Mott Avenue and Beach Channel Drive if he wanted his truck back {A 850-851, 857, 859-862, 1384-1386). They met around 9:00 p.m. and drove to Springfield Boulevard, where G spotted a black BMW, followed it to a side street, and said he had to "get this one." G directed appellant to meet him at Springfield Boulevard and Francis Lewis Boulevard and left the car. Appellant heard several gunshots and saw the black BMW "fl[y] past" him. On Francis Lewis Boulevard, G, armed with a silver gun, telephoned someone and reported that he had "hit" "the old man." G gave appellant the keys to the BMW and four wads of money, and said that he would contact him the next day {A 860-861) . 21 Cooperator Carlos Nicholls's Testimony Carlos Nicholls, age 30, started stealing packages and mail and committing a burglary at age 15 (A 650-651) . He graduated to using stolen personal identification information to activate cell phones, which he then sold, and buy merchandise with false credit accounts; he also created fake driver's licenses and social security cards and filed a false insurance claim (A 651, 746-751, 757-762) . After serving time, he pleaded guilty to petit larceny in 2005; and possession of a forged instrument in 2006 (A 652-656, 748-749). Three months after the instant crime, Nicholls was arrested driving a stolen car (A 611). The next year, he was charged with various federal offenses and faced up to 90 years in prison and more than $1,000,000 in restitution (A 539, 613). On January 24, 2011, he entered into a federal cooperation agreement under which he pleaded guilty to conspiracy to steal United States Treasury checks and commit access device fraud; heal thcare, bank, and identification document fraud; aggravated identity theft; and alteration or removal of vehicle identification numbers [VIN] on stolen vehicles. He also pleaded guilty to criminal possession of two firearms, including the .380 caliber gun used in the instant 22 case and accessory after the fact to carjacking (A 537-539, 657- 662, 708-715, 720-722). The agreement required Nicholls to, inter alia, cooperate in appellant's prosecution, in exchange for which federal prosecutors would write a letter to the federal judge about his cooperation; no prosecutor "promised" a recommendation of "less time," however (A 538, 540). Nicholls also received about $8,000 from prosecutors for "moving assistance" {A 543-544) . At trial, Nicholls, who had not yet been sentenced in his federal case, testified that he had known appellant for about a year {A 535, 538-539) when, around 9:00 p.m. on May 11, 2009, appellant drove past a silver BMW and said that he "was going to take" the car; Nicholls went home (A 580-584). Nicholls turned on his police scanner, which he used to warn those "working for him" of police activity related to their crimes {A 585). Around 10:00 p.m., he heard a report about a carjacking and shooting (A 585-586) . About an hour and a half later, appellant, who had worn a black hoodie and sweatpants earlier, arrived at Nicholls's house wearing a different outfit. When Nicholls mentioned the reported carjacking, appellant, gesturing to Nicholls's friend in the apartment, warned him to say no more {A 587-588) . 23 The next day, appellant allegedly told Nicholls that "he got a black BMW last night" when he saw "the guy park his car" (A 592- 593). Nicholls stopped him from saying more because he "d[id]n't want to hear about it," in "case of a situation such as this where I would have to testify" (A 593). One day later, appellant told Nicholls the police had arrested his girlfriend, asked Nicholls to retrieve photographs of a black BMW from appellant's camera, and showed Nicholls a BMW car key, which "looked just like" the key appellant had when he was arrested (A 594-599). A couple weeks before appellant's arrest, Nicholls declined to replace a fake JFK identification and Louisiana driver's license he had made for appellant because they were still "good" (A 643-644, 647) . The day before appellant's arrest, Nicholls saw appellant with counterfeit money (A 648-650) . Several weeks after appellant's arrest, he purportedly told Nicholls he gave the police "a story": he "was driving with the guy" who said, "okay, we're going to make some money"; the guy "got out" and "went around the corner"; he "heard some gunshots" and the guy returned, and "[t]hey drove off and the guy gave him some keys" (A 605-606) . knowing anyone named "G" (A 607) . 24 Nicholls denied Appellant told Nicholls to "pick up the thing," meaning a gun, from appellant's wife (A 580-581, 608-609). Several days later, she gave Nicholls a gun (A 582-583, 609-610, 615-616, 720-721). Nicholls cut off and discarded the gun's barrel, but kept its frame (A 608-611) . After his own federal arrest, Nicholls gave the police the gun frame (A 613-619). That gun had fired the eight shell casings found at the crime scene (A Det. Robert Novak: 1005- 1016; Det. DiCostanzo: 1111-1122). The Uncharged Crimes Evidence Before Nicholls testified, defense counsel objected to the People eliciting any evidence that appellant was "part of a criminal enterprise" involving car theft (A 209-211, 522-523). The court directed the prosecutor "not to get into any uncharged crimes" Nicholls allegedly committed with appellant (A 527) . The prosecutor said that Nicholls would refer to appellant as "merely an associate, so, therefore, [the jury] can't determine who the person is" (A 527) . On his direct testimony, over objection, Nicholls explained that, in his federal case, he and three accomplices - "Associate A," "Associate B," and "Associate C" - removed numerous VIN numbers from stolen cars (A 708-719) . "Associate A" supplied photographs of "Associate B," which Nicholls used to make fake identifications 25 and credit cards to steal cars from rental car companies. "Associate A would then take Associate B to various rental locations and obtain vehicles with fraudulent documents." "Associate A would then take the vehicle to Associate C and Associate C would alter the vehicles [' VIN] . " The stolen vehicles were then sold (A 708-712) . "Associate A" also obtained stolen United States Treasury checks and recruited others, for whom Nicholls made counterfeit identification cards, to cash the stolen checks (A 713-714) . Nicholls pleaded guilty to possession of two guns. The .45 caliber gun "was mine personally" (A 715) . "Associate A" owned the other gun, entered into evidence as People's Exhibit #13 (A 715, 720). Moving to strike Nicholls's testimony about committing numerous crimes with associates and for a mistrial, defense counsel argued: It is now very clear that the jury knows that Associate A [is] my client, because [Nicholls] pled guilty to a gun owned by Associate A and that gun is the .380, that's my client, the jury is not dumb, they are going to know Associate A is my client .. These are uncharged crimes and I'm objecting to this because [the prosecutor] is not saying his name, but by saying Associate A, it is clear (A 718) . * * * 26 The jury has heard that Associate A committed all of these crimes to which Carlos Nicholls was a participant to in the [federal] case. Mr. Nicholls has now testified that Associate A did various criminal acts. Wh[ile] the D.A. has not elicited what he pled guilty to . . . , the link had been made to the jury that Associate A is my client, [] and this is like a back door entry to get into all of these uncharged crimes (A 718) . Refusing to strike Nicholls's testimony about committing crimes with associates and denying a mistrial, the court struck his testimony "about associates delineated by letters," instructing the jury, "The testimony will read associate without having a letter attached to it" (A 719) . 7 Defense counsel again unsuccessfully objected and moved for a mistrial (A 719-720) . The Court's Denial of a Missing Witness Charge Before the People rested, defense counsel requested a missing witness charge concerning Mark Miller, the complainant's son, who witnessed the shooting, called 911, and that "very night" gave the police a description of the shooter that differed from the prosecution witnesses' testimony (A 1126-1127, 1186-1189). counsel 7 The court subsequently repeated this instruction and told jurors to "disregard those letters" Nicholls used to identify his associates and his testimony regarding the "activities of any associates." Defense counsel objected, contending that a mistrial should be granted because "no curative instruction would eliminate" the prejudice to appellant (A 793, 806, 1273-1274). 27 contended that Mark's testimony would not be cumulative and that he was available to, and within the control of, the People (A 1186- 1187) . The prosecutor objected because she had made Mark available to defense counsel, who had not called him (A 1187-1188). She argued that, although the witnesses testified that the shooter was 5 1 10 11 , Mark's potential testimony that he was 6 1 1 11 or 6 1 2 11 would be "consistent with all of the descriptions provided by all of the witnesses" and, therefore, merely "cumulative to Ms. Miller" and "[im]material" (A 1188). Defense counsel responded that Mark's availability to her was irrelevant because she had no burden (A 1188-1189) . Furthermore, Mark described the perpetrator as taller than appellant, making Mark "different" from witnesses who were initially unable to describe the shooter that evening. Mark's description would provide the jury with a "full picture" and assist the jury in "decid [ing] whether or not the identifications by Mr. Miller or the other parties are accurate" (A 1189) . Without stating a reason, the court denied the missing witness charge request (A 1189). 28 The Defense Case At about 9:45 p.m. on May 11, 2009, Hazel McCain was in her home on 132nd Road when she heard about four gunshots (A 1154-1155) . From her window, she saw people crying and "carrying on in the street" and a sedan speeding away. When the sedan reached the corner, an SUV "pulled off" behind it, following it around the corner (A 1155) . Although Detective Roberts claimed that he followed appellant on Fulton Street to North Conduit before arresting him (A 821) , Thomas LoFrese, a private investigator, testified that Fulton Street did not intersect North Conduit (A 1164) . Defense Counsel's Summation Arguing that the People failed to prove appellant's identity as the gunman beyond a reasonable doubt, defense counsel noted that, while prosecution eyewitnesses gave identical descriptions of the gunman's height for the first time at trial, none described the gunman's height shortly after the shooting. Miller, the only eyewitness who identified appellant, told the police minutes after the incident that the man wore a mask, permitting him to see only his eyes (A 1203-1207). Counsel contended that, even if the jury credited Miller's recently-minted observations, there was nothing 29 unique about appellant's eyes or nose providing a basis for Miller to make a reliable identification of him at trial (A 1204) . Counsel also argued that Nicholls, a career criminal since his teens, told jurors "a bunch of falsehoods and lies" (A 1220-1222). Counsel maintained that the gun belonged to Nicholls, who falsely implicated appellant in order to save himself from serving the rest of his life in prison (A 1223-1226) . The Prosecutor's Summation Arguing that she proved appellant was Miller's lone assailant, the prosecutor described Nicholls as a "light-skinned" man who was more muscular and "a good couple of inches taller" than appellant. His "almond" -shaped, light brown eyes were unlike appellant's "round" eyes (A 1258-1259) . Verdict The jury acquitted appellant of criminal possession of stolen property and illegal possession of a vehicle identification number plate, but found him guilty of attempted second-degree murder and lesser counts (A 1357-1368) . 30 The Appellate Division Decision On appeal, the Appellate Division, Second Department, majority affirmed appellant's conviction, holding that, while the People's case at the suppression hearing would have been "stronger" had they established that appellant "ate food, drank water, and had access to the bathroom" while detained at the precinct, appellant "did not testify that he was denied any of these necessities, and his counsel did not offer any other proof of such deprivation" (A 5) . In any event, suppression was unwarranted because appellant confessed when confronted by evidence of his guilt and the People's trial evidence "did not establish[] that [appellant's] statements were involuntary" (A 6). Finally, even if the hearing court erred, it was harmless (A 6) . The majority also held that the court providently exercised its discretion in denying the missing witness charge because "identity was not seriously contested," the identification evidence was "powerful" and "corroborated," and the height difference was "immaterial" (A 7-8). As to the uncharged crime evidence, "any prejudice" "was ameliorated" by the sustained objection, striking of the testimony, and curative instruction (A 8). The Honorable L. Priscilla Hall, dissenting, would have reversed the judgment, suppressed appellant's statements, and 31 ordered a new trial because of the "cumulative effect" of these errors. In her view, the People failed to satisfy their burden of proving appellant's statements were voluntary beyond a reasonable doubt since they failed to prove that, during the "up to 33 hours between" appellant's arrest and arraignment, when he was interrogated by multiple law enforcement agencies, he was provided "access to food, water, a bathroom, and sleep" (A 9). In addition, Justice Hall concluded that the court should have given a missing witness charge because Mark's height description went "directly to a material issue" in the case, and declared a mistrial because the uncharged crimes evidence prejudiced appellant by suggesting his criminal propensity (A 10-11) . Justice Hall granted appellant leave to appeal (A 1) . 32 ARGUMENT POINT I ABSENT ANY EVIDENCE OF WHAT OCCURRED OVER THE MORE THAN 25-HOUR PERIOD DURING WHICH THE POLICE DETAINED AND INTERROGATED APPELLANT BEFORE HE INCULPATED HIMSELF, THE PEOPLE FAILED TO CARRY THEIR HEAVY BURDEN OF PROVING THAT APPELLANT'S STATEMENTS WERE VOLUNTARY. on the second day after the police arrested appellant and detained him in a precinct room, he made inculpatory statements. The hearing evidence showed that, unlawfully delaying appellant's arraignment, the police detained him in the room for more than 25 hours during which multiple law enforcement agencies interrogated him. The People failed, however, to adduce any evidence of what occurred during these sessions or whether even appellant's basic human needs were met. Given the gap in the People's proof, they failed to carry their heavy burden of proving beyond a reasonable doubt, based on a totality of the circumstances, that appellant made the statements voluntarily and the statements should have been suppressed. A. The People Bear the Heayy Burden of Proving that a Defendant's Statement was Made Voluntarily Under both the Fifth Amendment and the New York State Constitution, "[n] o person shall ... be compelled in any criminal case to be a witness against himself, nor deprived of life, 33 liberty, or property, without due process of law." U. S. Const., Amend. V; N.Y. Const., art. I, §6. Both Constitutions forbid conviction by means of a defendant' s coerced confession. Rogers v. Richmond, 365 U.S. 534, 540-541 (1961); Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944). Accordingly, the prosecution must establish guilt by "evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth." Rogers, 365 U.S. at 540-541 [citations omitted]; see also Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (a defendant's statement is voluntary only if it is the product of his "free and unconstrained choice"). Criminal Procedure Law §60 .45 (1) also prohibits the prosecution from introducing the accused's involuntary extrajudicial confession. While the rationale underlying the inadmissibility of an involuntary statement is "heavily influenced" by the privilege against self-incrimination, when a defendant's statement is obtained under circumstances either rendering it unreliable or involving "methods so extreme that they offend our notions of fundamental fairness, or because of both," it is involuntary and inadmissible as violative of due process. People v. Anderson, 42 N.Y.2d 35, 36, 38 (1977); see also Rogers, 365 U.S. at 544; People v. Thomas, 22 N.Y.3d 629, 644-645 (2014). A "series of 34 circumstances may each alone be insufficient to cause a confession to be deemed involuntary, but yet in combination they may have that qualitative or quantitative effect." People v. Jin Cheng Lin, 26 N.Y.3d 701, 719 (2016) (quoting Anderson, 42 N.Y.2d at 38); see also People v. Guilford, 21 N.Y.3d 205, 206 (2013). Therefore, in assessing the voluntariness of a defendant's statement, a court "must consider the totality of the circumstances" that generated it, Jin Cheng Lin, 26 N.Y.3d at 719 (emphasis added), including the characteristics of the accused, Guilford, 21 N.Y.3d at 206 (citing Dickerson v. United States, 530 U.S. 428, 434 (2000), and "all of the surrounding circumstances" of the interrogation. People v. Mateo, 2 N.Y.3d 383, 413 (2004) (emphasis added) . See also Guilford, 21 N.Y. 3d at 206 ("Proof of voluntariness compatible with due process . . will depend upon the particular circumstances - 'the totality' - of each case"); Anderson, 42 N.Y.2d at 38 (same). It is the People's "heavy burden" to prove beyond a reasonable doubt that a defendant's statement they intend to rely upon at trial is voluntary. Thomas, 22 N.Y.3d at 641; People v. Holland, 48 N.Y.2d 861, 862 (1979); Anderson, 42 N.Y.2d at 38; People v. Huntley, 15 N.Y. 2d 72, 78 (1965) . When official illegality potentially impaired a statement's voluntariness, the People's 35 showing must be "particularly responsive" to the claimed constitutional violation. Guilford, 21 N.Y.3d at 209. B. The People Failed to Prove, Under the Totality of Circumstances, That Statements Appellant Made More Than 25 Hours After His Arrest Were Voluntary The police deliberately delayed appellant's arraignment even though they had probable cause as to numerous crimes shortly after Detective Roberts stopped and arrested him on May 14, 2009. Instead of taking the administrative steps necessary to arraign him, Roberts held him incommunicado in a precinct room for more than 25 hours during which appellant was subjected to rounds of interrogation by at least three different law enforcement agencies - the Secret Service, the Port Authority Police Department, and the Suffolk County Police Department. Roberts finally Mirandized appellant at 8:30 p.m. on May 15 after more than 25 hours of pre- arraignment delay. During the ensuing interrogation, appellant inculpated himself in the instant crime. Despite the lengthy period of delay and multiple interrogations, the People presented no evidence at the Huntley hearing as what happened during the first 25 hours or more. The People are not required to produce every officer who came in contact with the defendant preceding his confession. People v. Witherspoon 66 N.Y.2d 973, 974 {1985). However, when law 36 enforcement officials hold a defendant in a precinct, deliberately delaying arraignment for more than 25 hours and subjecting him to rounds of interrogation by officers from multiple law enforcement agencies, the People must prove that the defendant's resulting statement was not the product of overtly or inherently coercive methods employed by any team of interrogators who questioned him before his confession. See Davis v. North Carolina, 382 U.S. 737 (1966) (initial interrogation focusing solely on defendant's possession of stolen property was relevant to voluntariness of later statements regarding a murder, when their purpose was to undermine his alibi in order to place him at the murder scene) ; Culombe, 367 u.s. at 621-635 (defendant's statement coerced when, without informing him of his constitutional rights, police interrogated him repeatedly over the course of five days); Turner v. Pennsylvania, 338 U.S. 62 (1949) (same, when police interrogated defendant intermittently over five days until he confessed); see also Thomas, 22 N.Y.3d at 638-641 (examining officers' statements to defendant during· repeated rounds of interrogation in determining whether, based on totality of circumstances, his statements were voluntary). In this case, the People entirely failed to establish anything that occurred over the extended period of appellant's detention, 37 much less what occurred during each round of interrogation. The People called a single witness, Detective Roberts, at the Huntley hearing and limited their proof to evidence of what occurred after appellant had already been detained for more than 25 hours. This was insufficient. Roberts did not testify about whether appellant made any statements relating to the instant crimes or invoked his rights to silence or counsel when he was interrogated by the other officers. Obviously, if such a statement were made without a valid waiver of his Miranda rights, or in disregard of an invocation of his rights, these circumstances would have been relevant to the voluntariness of his statements to Roberts. See, ~., Mincey v. Arizona, 437 U.S. 385, 399-400 (1978) (failure to honor defendant's request for counsel before interrogation continued constituted was a factor in "careful evaluation of all circumstances of the interrogation" showing statements were involuntary); see also People v. Cunningham, 49 N.Y.2d 203, 207-211 (1980) (a defendant in custody who invokes his right to counsel, thereby "express[ing] his own view that he is not competent to deal with authorities without legal advice [citation omitted]", cannot thereafter effectively waive this right in counsel's absence). 38 Roberts initially testified that appellant remained in the same locked interrogation room between his arrival at the precinct on May 14 and his departure from it on May 16. However, in violation of protocol, he failed to make any required entries in the prisoner's log, which would have recorded appellant's whereabouts, and could not recall them. It was, of course, the People's burden to prove the conditions of appellant's confinement. Jin Cheng Lin, 26 N.Y.3d at 719; Thomas, 22 N.Y.3d at 641; Holland, 48 N.Y.2d at 862; Anderson, 42 N.Y.2d at 38; Huntley, 15 N.Y.2d at 78. Nor did the People present evidence that, over the extended pre-arraignment detention, appellant was provided food or access to a bathroom, or that he slept. There was no evidence that a bed or cot was in the interrogation room, that appellant was ever removed from the room, or that he was left unrestrained so that he could get any meaningful rest. Courts and scholars studying the psychological effects of various interrogation techniques have long recognized that "[t] here is torture of the mind as well as the body; the will is as much affected by fear as by force." Watts v. Indiana, 338 U.S. 49, 52 (1949); see also Miranda v. Arizona, 384 U.S. 436, 448 (1966) ("coercion can be mental as well as physical"). 39 Numerous studies have shown that certain interrogation tactics, including prolonged detention and questioning in a police- dominated setting, are designed to exert psychological pressure on a suspect to overcome his will and induce him to speak. See Saul M. Kassin, et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 16 (February, 2010) (single-minded objective underlying prolonged interrogation in a police-dominated setting is to "alter a suspect's decision making by increasing the anxiety" associated with remaining silent and denying guilt; "prolonged isolation from significant others" "constitutes a form of deprivation that can heighten a suspect's distress and incentive to remove himself or herself from the situation"); Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1060, 1095-1099 (April, 2010). Courts have long recognized that, because the deprivation of sustenance and sleep can impair a suspect's decision-making capabilities, such a factor warrants suppression. For example, in Anderson, 42 N.Y.2d at 37-39, when the defendant was deprived of food and sleep during his 19 hours of detention and interrogation in a sparsely furnished room, this Court held that the People failed to prove his statement was made voluntarily. Acknowledging that "[t]he potential effect on human beings of the lack of such 40 elemental needs as sleep and sustenance requires no elaboration," the Court stated: Id. at 39. In the face of such not so subtle pressures, elementary principles of psychology tell us that Anderson, unconsciously at least, had to feel that the police had the right to hold him as they were doing, that he would be regarded as recalcitrant if he failed to answer their questions, .that they had all of the time in the world to query him and that, if he was to be freed, it would be when his answers had satisfied them. The coercive effects of prolonged detention and deprivation of sustenance and sleep similarly led to a reversal in Guilford, 21 N.Y.3d at 205. The police detained Guilford for 49~ hours, often in a small room, and he was interrogated by rotating pairs of officers after he waived his Miranda rights. Only after an attorney spoke to Guilford for two hours was he removed to the courthouse and arraigned. Eight hours later, he returned to the same room and, in his lawyer's presence, made an inculpatory statement. Id. at 210-211. The People failed to present any direct evidence that Guilford slept during the eight-hour "break" or that he ate during the lengthy pre-arraignment detention, apart from a sandwich on the second day. Moreover, the People failed to show that the attorney's presence neutralized the earlier coercive detention and 41 interrogation. Based on the totality of the circumstances, this Court held that the People failed to carry their heavy burden of proving, beyond a reasonable doubt, that Guilford's statement was voluntary. Id. at 212-214. In Jin Cheng Lin, 26 N.Y.3d at 724-725, the Court again acknowledged that deprivation of "basic human needs" can undermine a suspect' s free will to remain silent. The People presented affirmative evidence at the Huntley hearing that the defendant's "basic human needs were provided for," as the pOlice gave him food, drink, bathroom access, and breaks during which he was able to rest and sleep. 26 N.Y.3d at 725. Given the proof that his needs were met and that he inculpated himself when confronted with evidence of his guilt, this Court held that the People sustained their burden of proving his statements voluntary beyond a reasonable doubt . Jin Cheng Lin, 26 N.Y. 3d at 725. The People made no such showing here. In sharp contrast to Jin Cheng Lin, the People adduced no proof that appellant received basic human sustenance, access to a bathroom, or the chance to sleep in the more than 25 hours he was detained before Roberts's interrogation. 9 This failure was all the 9 Appellant's sleep deprivation was potentially far longer than 25 hours since he was arrested after 3: 00 p.m. on May 14. See Anderson, 42 N.Y.2d at 39 (when defendant was arrested after midnight, period of sleep deprivation must be measured from the "time he had arisen from his bed" on the morning of the preceding (continued ... ) 42 more striking when defense counsel had argued that appellant's statements were involuntary as the product of his unnecessary detention in the precinct for more than 24 hours without "food, drink, water and sleep [and] without being brought to court for [] arraignment" (A 133-136, 1380), contrary to established cases. See, ~-, Greenwald v. Wisconsin, 390 u.s. 519, 521 (1968) (no food during 12 hours of custody); Sims v. Georgia, 389 u.s. 404, 407 (1967) (no food during eight hours of custody) ; Guilford, 21 N.Y. 3d at 212 (no food for 30 hours and sleep for almost 50 hours) ; Anderson, 42 N.Y. 2d at 40 (the "potential effect on human beings of the lack of such elemental needs as sleep and sustenance requires no elaboration"). Given the gigantic gap in the People's proof at the Huntley hearing, they failed, as a matter of law, to carry their heavy burden of proving beyond a reasonable doubt that appellant's statements were voluntary. The Appellate Division majority expressed "concern" about the lack of proof that appellant was "provided with basic necessities of life while at the station house" for about 33 hours, but faulted the defense for failing to "offer any other proof of such deprivation" or have appellant "testify" that he was "denied any of these necessities" (A 4-6); People v. Johnson, 139 A.D.3d 967, 972 9( ••• continued) day). 43 (2d Dept. 2016). The court thereby improperly shifted the burden of proof to the defense. It is well-established that the People bear the burden of proving a defendant's statement voluntary and that a suspect's basic human needs were provided during prolonged detention and interrogation. See Thomas, 22 N.Y.3d at 641; Guilford, 21 N.Y. 3d at 208. Therefore, the defense cannot be faulted for the lack of this critical evidence. The majority further held that the trial evidence did not establish involuntariness (A 5) . It is equally well-established, however, that trial evidence may not be relied upon to justify a pretrial suppression ruling. People v. Dodt, 61 N.Y.2d 408, 417 (1984). Trial evidence was irrelevant to whether the People sustained their burden at the suppression hearing. Accordingly, the Appellate Division's reasoning was plainly erroneous. Finally, the majority claimed that the "record demonstrates that [appellant] did not provide his self-serving statements due to any coercion by the police, but rather" did so "once he was faced with evidence of his guilt," specifically, the "victim's identification from the photo array" (A 6); Johnson, 139 A.D.3d at 972. 10 However, there was no evidence at the Huntley hearing that 10 The People bear the burden of proving use at trial voluntary regardless of confession or purportedly "self-serving." 44 a statement they wish to whether it is a full See generally Jin Cheng (continued ... ) Roberts or anyone else informed appellant of Miller's identification, so this part of the majority's conclusion must be rejected as without record support. See Jin Cheng Lin, 26 N.Y.3d at 720 (Court may reject lower court's findings absent record support) . The People contended, and the suppression court agreed, that they carried their burden because appellant waived his Miranda rights immediately before Roberts's interrogation, and that the prolonged detention was excusable because "a lot [was] going on in this case" (A 140-143, 151). These arguments were also meritless. When a defendant challenges his statement as involuntary, evidence that he validly waived his Miranda rights does not by itself resolve the inquiry. Dickerson, 530 u.s. at 444; Berkimer v. McCarty, 468 U.S. 420, 433 n. 20 (1984) ("We do not suggest that compliance with Miranda conclusively establishes the voluntariness of a subsequent confession"). Therefore, to carry their burden of proof, it was insufficient for the People to demonstrate that appellant ultimately waived his Miranda rights. They also had to prove that what occurred beforehand was not coercive. Moreover, prior events may influence the validity of a Miranda waiver itself. Thus, in determining whether appellant effectively waived Miranda, 10 ( ••• continued) Lin, 26 N.Y.3d at 718-725. 45 the court had to assess the "totality of circumstances" preceding the waiver. See Fare v. Michael c, 442 U.S. 707, 725 (1979} {"totality-of-the-circumstances approach is adequate to determine whether there has been a waiver" of Miranda rights} . The People failed to make this minimum showing. In Jin Cheng Lin, the Court rejected the People's contention - made again here - that ongoing police investigations following a warrantless arrest constituted an "automatic excuse" for pre- arraignment delay. As this Court stated, the text of C.P.L. §140.20{1} "requires that a pre-arraignment detention not be prolonged beyond a time reasonably necessary to accomplish the tasks required to bring an arrestee to arraignment." 26 N.Y.3d at 721. Accordingly, the statute lends no support for such sweeping and unlimited exemption. * * * As this Court has stated, section 140.20 "is designed to protect against unlawful confinement and assure that persons accused are advised of their rights and given notice of the crimes charged" [citation omitted] . A per se rule that delay associated with an investigation can never be unnecessary, regardless of the circumstances, would undermine the salutary goals of C.P.L. 140.20(1). Instead, a delay for investigatory purposes is treated the same as any other prearraignment delay: "one factor in assessing the voluntariness of a confession" [citation omitted] . That is not to say that a delay under the guise of investigation, which 46 yields no more than a defendant's inculpatory statements, and was intended solely to prolong detention just long enough to secure a confession, should be considered the equivalent to a delay caused by purely ministerial or administrative tasks. For where the intent is to overbear the will of an individual, and the results prove successful, prearraignment delay cannot be tolerated. Id. at 722-723. Noting that a court "must give careful consideration" to pre- arraignment delay, this Court rejected the People's claim in Jin -cheng Lin that an ongoing investigation was a valid excuse when the evidence showed that they continued to detain him long after they had ample evidence for his arrest. Because, by the time detectives obtained his confession, "all the police had done was complete an online booking form," there was "hardly the type of efforts intended to ensure the prompt []arraignment required by C. P. L. 140.20." Jin Cheng Lin, 27 N.Y.3d at 723. See also Ramos, 99 N.Y.2d 27, 34-36 {2002) {when the police unlawfully delay arraignment to procure a defendant's statement, the delay has "substantial bearing" on a statement's voluntariness); People ex rel Maxian v. Brown, 77 N.Y.2d 422, 427 {1991) {in New York City, delay beyond 24 hours is presumptively "unnecessary" and violates the law); People v. Alex, 265 N.Y. 192, 195 {1934) {"The law does 47 not leave to the police discretion as to when a prisoner shall be arraigned") . Here, Roberts admitted that appellant was held more than the presumptive 24-hour pre-arraignment period for the purposes of completing the "investigation going on" and giving every law enforcement agency who wanted it, an opportunity "to see" and interrogate appellant (A 78) . At least three different agencies - the Secret Service, Port Authority Police Department, and Suffolk County Police, who interrogated appellant about a carjacking - questioned him during the first 25 hours of his detention. As there is no "ongoing investigation exception to [C.P.L. §140.20's] clear mandate that a person subject to a warrantless arrest be arraigned without unnecessary delay," Jin Cheng Lin, 26 N.Y.3d at 721, this was clearly improper. 11 The People never produced any evidence that the extraordinary pre-arraignment delay of between 25 and 33 hours was due to an inability to complete the administrative tasks necessary to arraign appellant. They contended that their failure to establish when 11 The People also argued that the contents of appellant's statements demonstrated their voluntariness because they were inconsistent with the information gathered during the police investigation. This argument is meritless because the issue is not whether the police fed appellant information to incorporate in his statements, but whether, given the totality of the circumstances, the statements were voluntary. 48 appellant arrived in the precinct was irrelevant because "there [was] a lot going on in this case which doesn't exist in usual cases" {A 141) . Turning a blind eye to the law mandating "that a pre-arraignment detention not be prolonged beyond a time reasonably necessary" to accomplish pre-arraignment administrative tasks, Jin Cheng Lin, 26 N.Y.3d at 721, Roberts, who the prosecutor conceded was preoccupied with "build [ing] a case against [appellant]" {A 140-141) , unlawfully delayed his arraignment. The police are simply not permitted to detain a suspect in a precinct over a prolonged period in order to give officers from multiple law enforcement agencies an opportunity to interrogate him. As the record shows, the police could have successfully moved appellant to Central Booking for arraignment when they arrested him on May 14. Moreover, they had all the information they needed to charge appellant with the crimes involved in this case, including the attempted murder of Martin Miller, no later than 2:30 p.m. on May 15, the day after his arrest, when Miller identified him in the photo array. The People failed, however, to prove that the police had taken any administrative step necessary to move appellant to court for arraignment in either the hours leading up to the photo identification or the six hours following it. Instead, they simply 49 continued detaining him until they procured the inculpatory statements used against him at trial. Given this Court's holding in Jin Cheng Lin, and the detention of appellant in the precinct for between 25 and 33 hours to investigate, there was no justification for the Appellate Division majority's conclusion the ongoing "police investigation" excused and "satisfactorily explained" the extraordinary delay {A 5) . That conclusion clearly failed to give the unlawful delay the mandated "careful consideration" in assessing whether the People carried their burden of proof. Jin Cheng Lin, 27 N.Y.3d at 723. In sum, the hearing evidence demonstrated that the police detained appellant and delayed his arraignment far in excess of 24 hours after his arrest, for the express purpose of giving officers from multiple law enforcement agencies an opportunity to question him. Yet, the People failed to adduce any evidence of what occurred before the interrogation by Roberts, the last of many officers to question him. There was no proof of what happened during the earlier interrogations. Nor was there any proof that appellant was provided with food, water, and bathroom access, or a chance to sleep. Given the extraordinarily long period of delay and the absence of any evidence of what occurred during it, the People failed to carry their heavy burden of proving beyond a 50 reasonable doubt that his statements were made voluntarily. Clewis, 386 U.S. at 711; Culombe, 367 U.S. at 621-635; Turner, 338 U.S. at 65; Watts, 338 U.S. at 54; Haley v. Ohio, 332 u.s. 596 (1948); Anderson, 42 N.Y.2d at 37-39. Therefore, his statements to Detective Roberts should have been suppressed. * * * The issue was preserved by defense counsel's motion and arguments to suppress appellant's statements and the suppression court's decision. People v. Prado, 4 N.Y.3d 725, 726 (2004). Defense counsel argued that the statements were involuntary because the police subjected appellant to unnecessary, prolonged pre- arraignment detention of at least 24 hours and "possibly even longer," during which officers from different agencies interrogated him without providing him with basic human sustenance (A 133-136, 1380). These arguments and the hearing court's ruling that the statements were voluntary preserved the issue. C.P.L. §470.05(2). The erroneous denial of suppression cannot possibly be deemed harmless beyond a reasonable doubt. People v. Crimmins, 36 N.Y.2d 239, 240-241 (1975). Without appellant's statements, the People's case would have been based on Miller's highly problematic identification and Nicholls's self-serving accusation. The robber wore a mask concealing most of his face. When Miller did not know 51 if the gunman wore gloves because it was too dark to see, his ability to reliably identify his masked assailant was highly suspect at best. Nicholls, a life-long and extraordinarily prolific criminal, faced up to 90 years for multiple federal crimes. His denial of any involvement in the robbery was incredible when he possessed the gun used to shoot Miller. Clearly, Nicholls had every incentive to divert blame from himself and the "associates" who helped him steal cars, and to cooperate against appellant, in order to reduce -hi:s federal sentence. That appellant had the keys to Miller's stolen car three days later did not prove his guilt. Indeed, since the police found and removed the stolen car within hours of the crime, the perpetrator would have had every incentive to rid himself of the keys that could link him to the shooting. Notably, no forensic evidence tied appellant to the car or the gun. Appellant's admission that he was present when Miller was robbed and shot, and was "involved" in the carjacking was obviously prejudicial. Thus, the court's refusal to suppress appellant's statements was not harmless beyond a reasonable doubt. Accordingly, the judgment should be reversed, the statements suppressed, and a new trial ordered. 52 POINT II WHEN THE SHOOTER'S IDENTITY WAS THE CRITICAL ISSUE, THE COURT ABUSED ITS DISCRETION IN DENYING DEFENSE COUNSEL'S REQUEST FOR A MISSING WITNESS CHARGE WHEN THE PEOPLE FAILED TO CALL THE COMPLAINANT'S ADULT SON WHOSE DESCRIPTION OF THE ASSAILANT'S HEIGHT DIFFERED FROM APPELLANT'S HEIGHT AND THE HEIGHT ESTIMATES BY THE OTHER EYEWITNESSES. Miller's son gave the police a description of the assailant that materially differed from that given by prosecution witnesses for the first time at trial and from appellant's appearance. The People failed to call the son as a witness at trial. Although the shooter's identity was the key issue in the case, the court refused to give a missing witness charge, thereby denying appellant his rights to due process and a fair trial. u.s. Const., Amend. XIV; N.Y. Const., art. I, §6. A missing witness charge informs the jury that it may "draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events." People v. Savinon, 100 N.Y. 2d 192, 196-197 {2003} . To be entitled to the charge, the uncalled witness must be "knowledgeable about a material issue already in the case"; someone "naturally [] expected to provide noncumulative testimony favorable to the party against whom the charge is sought"; and "available to the party opposing the charge." People v. Kitching, 78 N.Y. 2d 532, 53 536 (1991); see also People v. Gonzalez, 68 N.Y.2d 424, 427 (1986). The party seeking the charge has the initial burden of meeting the first two requirements. People v. Keen, 94 N.Y.2d 533, 539 (2000); Gonzalez, 68 N.Y.2d at 429. To defeat the charge, the opposing party must then "account for the witness' absence or otherwise demonstrate that the charge would not be appropriate." Gonzalez, 68 N.Y.2d at 428. Defense counsel easily met her prima facie burden when the People failed to call the complainant's 42-year-old son, Mark Miller, at trial, where the key issue was identity. An eyewitness to the shooting of his father, Mark spoke to the police that night and described the assailant. Although other eyewitnesses called by the prosecution at trial were interviewed that night, none described the gunman' s height. Only Mark was able to do so, describing him as either 6'1" or 6'2" tall when appellant was only 5 I 10" (A 1188). The shooting victim was the only eyewitness to identify appellant as the perpetrator, but he admitted the gunman wore a mask that concealed most of his face and that it was so dark he could not tell whether he wore gloves. Under these circumstances, there was no basis finding Mark's testimony, which was clearly probative of the gunman's identity, immaterial or irrelevant. See 54 Gonzalez, 68 N.Y.2d at 430 (when identity was the issue, potential testimony of uncalled witness who observed the crime can "hardly" be considered "immaterial or irrelevant"). Mark was clearly within the People's control given his familial relationship to the complainant. As the victim's son, he could reasonably be expected to testify favorably to the People. Keen, 94 N.Y. 2d at 640 (defendant had control over his former girlfriend); Gonzalez, 68 N.Y.2d at 430 (complainant's spouse "or other close relative of the complainant can also be expected" to testify favorably to the People); People v. Wilson, 64 N.Y.2d 634, 635-636 (1984) (same) . And because the People knew Mark's whereabouts (A 1187), he was available to them. Contrary to the prosecutor's claim, Mark's testimony would have been "noncumulative." Kitching, 78 N.Y.2d at 536. Mark's description was not, as the prosecutor contended, "consistent with the descriptions provided by all of the witnesses" (A 1188) . Rather, the record shows that neither Miller, his wife Carmen, nor his neighbor Michael Kearsey described the gunman's height when interviewed by the police shortly after the shooting. In fact, Mrs. Miller and Kearsey each told the police they were unable to describe his features apart from his race and relative age. It was 55 not until the trial, more than two years later, that each claimed for the first time that the gunman was 5 1 8 11 to 5 1 10 11 tall. Mark's height description of a man 6 1 1 11 or 6 1 2 11 given to police the night of the shooting and before appellant's arrest, constituted significant, non-cumulative evidence. It was, as defense counsel argued, inconsistent with the descriptions the other witnesses gave. Moreover, while their descriptions were of a man in the average height range, Mark's was of a tall man, three or four inches larger than appellant, a significant height difference that could well have given jurors pause as to whether Mark's father had identified the right man. Therefore, as defense counsel correctly argued, Mark's testimony would have given jurors "a full picture" to evaluate the "accura [cy]" of Miller's identification of appellant (A 1189}. People v. Macana, 84 N.Y.2d 173, 180 (1994} (a missing witness's testimony is not cumulative if the witness would have testified differently from those who actually testified) . The prosecutor's remaining contention- that Mark was equally available to defense counsel - was meritless. As counsel correctly argued, the defense had no obligation to call the complainant's son, and his purportedly equal availability to the defense was not 56 a proper basis to deny a missing witness charge. People v. Hall, 18 N.Y.3d 122, 131 (2011}; Gonzalez, 68 N.Y.2d at 429. The Appellate Division majority held that the lower court properly denied the charge because Mark's testimony would have been "immaterial," the identification evidence was "powerful," and "identity was not seriously contested in this case" (A 7} . That reasoning not only lacked record support, but applied an incorrect legal standard. The record unambiguously shows that identity was the issue in the case. In her summation, defense counsel argued that the People failed to prove appellant's identity as the gunman, reminding the jury that Miller, the sole identifying witness, testified that the shooter wore a mask concealing much of his face. Conversely, the prosecutor urged the jury to rely on her witnesses to find that appellant carj acked Miller. Under these circumstances, Mark's 6 1 1 11 or 6 1 2 11 height description, reported right after the incident, when appellant was 5 1 10", would have been material evidence directly undermining the People's identification case. Moreover, the majority's assessment of the strength of the People's case as "powerful" was irrelevant to the "materiality" of the uncalled witness's testimony. As this Court has stated repeatedly, in this context, "materiality" means "relevance." 57 Macana, 84 N.Y.2d at 177 ("materiality" is evidence "relevant" to a factual issue in the case); Kitching, 78 N.Y.2d at 537 (same); People v. Erts, 73 N.Y.2d 872 (1988) (same); Gonzalez, 68 N.Y.2d at 430 (same). Therefore, whether an uncalled witness's testimony was material turns on whether the testimony was probative of a factual issue in the case. If relevant, it was for the jury, based on all evidence, to determine whether the identification evidence fell short of proof beyond a reasonable doubt. 12 * * * This error was preserved by defense counsel's request for the charge (A 1126-1127, 1187-1188). The court's refusal to give the charge cannot be deemed harmless (see pp. 51-52, ante) . Undeniably, had Mark testified, his description of the 6 '1" or 6 '2" tall assailant would have raised even more questions about 5'10" appellant's identity as the masked gunman. Had the missing witness charge been given, the jury might have believed that Nicholls or one of his car theft "associates" was the gunman, especially since Nicholls had the gun and was testifying against appellant to avoid 12 In any event, because the People made no claim that the strength of their identification evidence rendered the uncalled witness's testimony immaterial, any such claim was unpreserved for review. People v. Paulin, 70 N.Y.2d 685, 687 (1987); People v. Tabarez, 69 N.Y.2d 663 (1986). 58 spending the rest of his life in prison. Therefore, appellant's conviction must be reversed and a new trial ordered. POINT III APPELLANT'S FAIR TRIAL RIGHT WAS IRRETRIEVABLY DAMAGED BY THE PROSECUTOR' S BLATANT VIOLATION OF THE COURT'S RULING, WHICH RESULTED IN THE JURY LEARNING THAT APPELLANT ALLEGEDLY COMMITTED NUMEROUS UNCHARGED CRIMES WITH THE PEOPLE'S COOPERATING WITNESS, SUGGESTING HIS PROPENSITY TO COMMIT THE CRIMES FOR WHICH HE WAS BEING TRIED. The court barred all evidence of uncharged crimes appellant allegedly committed with Carlos Nicholls. Nevertheless, the prosecutor elicited detailed testimony from Nicholls outlining how he and "Associate A," who was obviously appellant, committed numerous uncharged crimes involving car and United States Treasury check theft and the creation of fake identification cards. Admission of this immensely prejudicial propensity evidence suggested that appellant was a criminal prone to steal cars and use false identification cards, the very allegations underlying his trial. As result, appellant was denied his rights to due process and a fair trial. U.S. Const., Amends. XIV; N.Y. Const., art. I, §6. 59 Uncharged crime evidence is inadmissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged. People v. Molineux, 168 N.Y. 264, 293 (1901); see also People v. Morris, 21 N.Y.3d 588, 594 (2013). The rule was fashioned to counteract the common tendency to believe that one who has committed, or is suspected of committing, one offense is likely to have committed another and therefore be guilty. Molineux, 168 N.Y. at 292. It seeks to "eliminate the risk that the jury, not fully convinced of the defendant's guilt of the crime charged, may, nevertheless, find against him because his conduct generally merits punishment." People v. Allweiss, 48 N.Y.2d 40, 46 (1979). The People never claimed that appellant's alleged involvement in Nicholls's crimes was relevant to the crimes charged in this case. Before Nicholls testified, the court explicitly directed the prosecutor not to elicit any evidence that appellant and Nicholls committed any uncharged crimes together (A 527). Nonetheless, the prosecutor elicited Nicholls's detailed testimony about how Nicholls and "Associate A" committed numerous car thefts - the very crime underlying the most serious charges in this case. The prosecutor also elicited that Nicholls and "Associate A" were involved in stealing United States Treasury checks and creating 60 forged instruments, crimes similar to some counts in this case. While Nicholls's crimes were relevant to his credibility, detailed evidence of Associate A's purported role in them was irrelevant. The prosecutor was well aware that the further testimony she elicited from Nicholls would convey that appellant was "Associate A." Under Nicholls's cooperation agreement, he had pleaded guilty to possessing the gun used to shoot Miller, which he claimed he obtained from appellant's wife at appellant's request. Yet the prosecutor deliberately elicited from Nicholls that the gun belonged to "Associate A" thereby linking appellant to all the numerous crimes "Associate A" allegedly committed with Nicholls {A 715) . As defense counsel argued in support of a mistrial, the jury was "not dumb" {A 718) . Indeed, neither the prosecutor nor the Appellate Division majority disputed that, as a result of the prosecutor's questioning, the jury improperly learned that Nicholls committed numerous uncharged thefts with Associate A, who also owned the gun used to shoot Miller, which Nicholls obtained from appellant's wife at appellant's urging. Denying the motion, the court attempted to cure the prejudicial error by striking the "A" from Nicholls's testimony about "Associate A." However, as the Appellate Division dissenting 61 judge noted (A 10), the court's instruction to disregard this evidence could not eliminate the prejudicial effect of Nicholls's detailed testimony about the numerous uncharged thefts he supposedly committed with appellant. Unambiguously suggesting that appellant had a propensity to steal cars and use forged documents, Nicholls's testimony about the enormous number of uncharged crimes he committed with appellant simply could not have been ignored by the jurors. This Court has recognized that, while jurors are generally presumed to follow a court's limiting instructions, see, ~-, People v. Davis, 58 N.Y.2d 1102, 1104 (1983), there are some contexts in which the risk that jurors will be unable to do so is simply too great to ignore. See People v. Cedeno, 27 N.Y.3d 110, 117 (2016) (co-defendant's extrajudicial statement naming another defendant is "so prejudicial that limiting instructions cannot work"); People v. Calabria, 94 N.Y.2d 519, 523 (2000) ("A court's instruction to a jury to disregard matters improperly brought to their attention cannot 'always assure the elimination of the harm already occasioned"'); People v. Carborano, 301 N.Y. 39, 41-42 (1950) (in a larceny case, curative instructions could not eliminate "harm already created" by evidence that defendant had been previously arrested for crime of receiving stolen property) . 62 In People v. Robinson, 273 N.Y. 438, 444-447 (1937), the defendant was charged with a single larceny involving proceeds of a stock sale on a client's behalf. During the People's case, the court sustained defense counsel's objections to questions suggesting that an examination of the defendant's business uncovered "irregularities" and struck testimony that "various larcenies" were also "uncovered." Id. at 444. This Court stated that, although the granting of a mistrial ordinarily rests in the judge's sound discretion, when an accused's fair trial right is "irretrievably prejudiced" by misconduct, there "is no room for the exercise of discretion by the trial judge." Id. at 445-446. Reversing the judgment and ordering a new trial, the Court held that the trial court's instruction to ignore testimony that the defendant had committed other larcenies could not eliminate the risk of prejudice: Admonition to disregard stricken out is easy to follow. * * * evidence which is give, but hard to The trial judge could not by admonition cause the jurors to forget what they had been told nor could he eradicate the impression that the defendant by objections was successfully excluding proof that the defendant habitually committed larceny. Id. at 445-446. 63 Similarly, here, in violation of the court's preclusion ruling, the prosecutor elicited Nicholls's revelations that he and appellant "habitually" stole cars and created forged instruments, clearly suggesting that appellant had a propensity to commit the very crimes involved in this case. As in Robinson, the court could not "cause the jurors to forget what they had been told nor eradicate the impression" that he was a habitual car thief and user of forged documents. Id. at 445-446. See also People v. Jackson, 7 N.Y.2d 142, 145 (1959) (instruction could not "erase[] the impression made on the jurors' minds or eliminate[] the harm occasioned") . If anything, the instruction to disregard the "A" in Nicholls's testimony about his "Associate A" and the later instruction to disregard the "activities of any associates" more likely emphasized that appellant was purportedly his accomplice. See generally Cedeno, 27 N.Y.3d at 120-121 (a co-defendant's obviously redacted statement, eliminating reference to the defendant, did not leave the "slightest doubt" that the defendant's identity was redacted, "particularly after the court instructed the jury that it was not to speculate about the redactions in any way") . * * * 64 This error was preserved by defense counsel's mistrial motion (A 719, 793). The court's denial of the motion cannot be deemed harmless in this problematic identification case (see pp. 51-52, ante) . The uncharged crimes Nicholls claimed appellant had committed with him involved precisely the types of crimes for which appellant was on trial. As a result, because the evidence invited the jury to draw the impermissible propensity inference, irretrievably prejudicing appellant's fair trial right, the court had "no room" to deny defense counsel's mistrial motion. Robinson, 273 N.Y. at 445-446. Thus, the judgment must be reversed and a new trial ordered. 65 CONCLUSION FOR THE REASONS STATED HEREIN, APPELLANT' S CONVICTION SHOULD BE REVERSED, HIS STATEMENTS SUPPRESSED, AND A NEW TRIAL ORDERED {POINT I), OR THE JUDGMENT REVERSED AND A NEW TRIAL ORDERED {POINTS II AND III) . BY: De Nice Powell Of Counsel Dated: November 30, 2016 New York, New York Respectfully submitted, LYNN W. L. FAHEY APPELLATE ADVOCATES Attorney for the Defendant-Appellant 111 John Street - 9th Floor New York, New York 10038 212-693-0085 66 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- MICHAEL JOHNSON, Defendant-Appellant. -------------------------------------------X CERTIFICATION I, DE NICE POWELL, an attorney duly admitted and licensed to practice in the State of New York, do hereby certify that the word count for all printed text in the body of the foregoing Appellant's brief, which was prepared on a word- processing system, is 13,222. Dated: New York, New York November 30, 2016 STATE OF NEW YORK COURT OF . APPEALS ------- --- -------- ------ ---- -- ---- ------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MICHAEL JOHNSON, Defendant-Appellant. ------- ---------------- ----- ---- -- ------X AFFIRMATION AFFIRMATION OF SERVICE STATE OF NEW YORK ss. : COUNTY OF NEW YORK , DE NICE POWELL, an attorney duly admitted to the practice of law in this State, does hereby affirm and show: 1. That on November 30, 2016, a copy of Appellant's Brief and Appendix was served upon Mr. Michael Johnson, Green Haven Correctional Facility, Stormville, New York, by causing a true copy of the same, in post-paid, properly addressed wrapper, to be deposited in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. Dated: New York, New York November 30, 2016 DE NICE POWELL