The People, Respondent,v.Robert Patterson, Appellant.BriefN.Y.November 15, 2016To be argued by Ellen Dille (15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- APL-2015-00212 ROBERT PATTERSON, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT March,2016 SEYMOUR W. JAMES, JR. ELLEN DILLE, Of Counsel Attorneys for Defendant-Appellant The Legal Aid Society Criminal Appeals Bureau 199 Water Street, 5th Floor New York, New York 10038 Tel:(212) 577-3285 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... ii ARGUMENT POINT I CONTRARY TO RESPONDENT'S CLAIMS, THE SUBSCRIBER INFORMATION CONTAINED IN PRE-PAID CELL PHONE RECORDS WAS ADMITTED FOR ITS TRUTH AND ITS UNLIMITED ADMISSION, IN VIOLATION OF JOHNSON v. LUTZ, 253 N.Y. 124 (1930), REQUIRES REVERSAL OF APPELLANT'S CONVICTIONS. (U.S., CONST., AMEND. XIV; N.Y. CONST., ART. I, §6 ................................ 3 CONCLUSION ............................................................................................. 29 1 TABLE OF AUTHORITIES CASES Johnson v. Lutz, 253 N.Y. 124 (1930) .................................................. Passim Matter of Leon RR, 48 N.Y.2d 117 (1979) .............................. 20-21, 27 Matter of State Farm Mut. Auto. Ins. Co. v. Fitzgerald, 25 N.Y.3d 799 (2015) .......................................................................... 27-28 Nucci v. Proper, 95 N.Y.2d 597 (2001) ...................................... 26, 28 Palladino v. CNY Centro Ins., 23 N.Y.3d 140 (2014) .......................... 28 People v. Brensic (Young), 70 N.Y.2d 9 (1987) ................. .............. 10, 17 People v. Garcia, 25 N.Y.3d 77 (2015) ................................................... 15, 17 People v. Geraci, 85 N.Y.2d 359 (1995) .......................................... 19 People v. Hardy, 26 N.Y.3d 245 (2015) ....................................................... 13 People v. Jackson, 8 N.Y.3d 869 (2007) ....................................................... 18 People v. Kennedy, 68 N.Y.2d 569 (1986) ................................................... 21 People v. Nicholson,_ N.Y.3d _, 2016 WL6339211. ........................ 11 People v. Nieves, 67 N.Y.2d 125 (1986) ..................................................... 18 People v. Ortega, 15 N.Y.3d 610 (2010) ................................. 19, 21-22 People v. Russell, 71N.Y.2d1016 (1998) ................................ 7-8, n. 2 STATUTES C.P.L.§470.15(1) ................................................................. 3, 12 C.P.L. §470.35 ................................................................ 3, 12, 18 11 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROBERT PATTERSON, Defendant-Appellant. ---------------------------------------------------------------------)( PRELIMINARY STATEMENT This brief is submitted in reply to respondent's brief. As discussed in appellant's initial brief, the crucial issue at his trial was whether the complainant, Michael Johnson, correctly identified him as one of two armed, masked robbers. The prosecution corroborated Johnson's identification testimony with two sets of pre-paid cell phone records, which allegedly belonged to appellant and the woman who was with Johnson when the crime was committed and supposedly set it up. Counsel consistently objected that, because subscribers to pre-paid accounts do not have a business duty to provide information about themselves to the phone companies, the subscriber information in those records did not qualify for admission under the business records exception to the rule against hearsay. 1 After extensive discussion, the court admitted both sets of records, including the subscriber information, in evidence, and noted counsel's exception. The court did not give a limiting charge when the records were received in evidence or in its final instructions and the prosecutor argued in summation that the records were the key to the case because they corroborated Johnson's identification testimony. The subscriber information was thus admitted for the truth of the records' assertions that the individuals named in the records, "Daichele Merrero," whom Johnson knew as Michelle, and "Darnell Patterson," were the subscribers, from which the jurors were asked to infer that appellant, Robert Patterson, who had the name, "Darnell," tattooed to his hand, was the person with whom Michelle spoke before and after the robbery. After four days of deliberations, during which the jurors asked for and received the phone records belonging to "Michelle and Robert Patterson," they acquitted appellant of first-degree robbery and burglary, but convicted him of second- degree robbery and burglary. 2 ARGUMENT POINT CONTRARY TO RESPONDENT'S CLAIMS, THE SUBCRIBER INFORMATION CONTAINED IN PRE-PAID CELL PHONE RECORDS WAS ADMITTED FOR ITS TRUTH AND ITS UNLIMITED ADMISSION, IN VIOLATION OF JOHNSON v. LUTZ, 253 N.Y. 124 (1930), REQUIRES REVERSAL OF APPELLANT'S CONVICTIONS. (U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6). In his initial brief, appellant argued that the Appellate Division, First Department, affirmed his convictions on the grounds that the subscriber information was non-hearsay and was independently admissible. In doing so, he maintained that the court exceeded its statutory authority because the trial court had not decided those grounds adversely to him, contravening C.P.L. §470.15(1) and decisions from this Court, and leaving that decision beyond this Court's power of review. C.P.L. §470.35. Appellant further asserted that the trial court erred in admitting in evidence the subscriber information contained in two sets of pre-paid cell phone records. The unlimited admission of the subscriber infonnation violated the rule of Johnson v. Lutz, 253 N.Y. 124 (1930), and progeny, because subscribers to pre-paid accounts are under no business duty to provide accurate 3 information about their identities. Appellant further contended that, if this Court were to review the Appellate Division's decision, it should still reverse because the decision lacked support in existing law. Respondent's central claim is that the subscriber information was admitted, not for its truth, but as non-hearsay. Thus, it contends that, because the trial court admitted the subscriber information as non-hearsay, which was one of the grounds for the Appellate Division's affirmance, that comi did not exceed its statutory authority. It further contends that, because the subscriber information was not hearsay, it did not run afoul of Johnson v. Lutz. Respondent's non-hearsay claim rests on the premise that, because the subscriber information was circumstantial evidence that appellant was one of the robbers, it was not introduced for its truth. That premise is fatally flawed because circumstantial evidence is simply evidence of a fact from which one may infer another fact, and thus is necessarily admitted for its truth. Indeed, although appellant made that point in his initial brief, respondent offers no argument to the contrary. Moreover, respondent's non-hearsay claim is refuted by the record, which demonstrates that the trial court rejected the prosecutor's proffer that 4 the subscriber information was being offered for other than its truth that appellant was one of the subscribers. On the contrary, the court admitted the subscriber information, not as non-hearsay, but for its truth without limitation. Respondent's unsupported non-hearsay claim is further belied by its policy argument that, because pre-paid cell phones are sometimes used by criminals, the unlimited "admission into evidence of subscriber information" serves a "truth-seeking function." Thus, just as the Appellate Division concluded that the subscriber information was "independently admissible," respondent is asking this Court to sanction the unlimited admission in evidence of hearsay contained in business records, and in effect to overrule· Johnson v. Lutz. As will be discussed, respondent's claims lack record and legal support. The Record Refutes Respondent's Claim that the Trial Court Admitted the Subscriber Information as Non-Hearsay Respondent's claim that the Appellate Division did not exceed its statutory authority because it affirmed appellant's convictions on a ground that was decided adversely to him is built on the premise that the trial court admitted the subscriber information, not for its truth, but as non-hearsay, RB 14, 15, 17-18, and that the Appellate Division's affirmance "comported 5 with" that reasoning, RB 18. Similarly, its claim that the admission of the subscriber information did not violate the business records exception as set forth in Johnson v. Lutz rests upon the premise that the information was not admitted for its truth, and therefore was not hearsay. RB 14, 15, 21-24. Although, as respondent acknowledges, the issue was "extensively litigated over several days," RB 14, and it accuses appellant of relying only upon "selected statements by the trial court," RB 19, it bases its essential non- hearsay claim on a single page of the record, A225 .1 The trial court did not state at A225 "that the subscriber information was to be admitted for a non-hearsay purpose," as respondent claims. RB 17-18, 19. Contrary to respondent's assertion, that the court described the subscriber as the "caller" instead of as Patterson and used the passive voice did not establish that the court was admitting the subscriber information for a non-hearsay purpose. Moreover, the court did state that it was admitting the subscriber information as "circumstantial evidence" against appellant. As noted, circumstantial evidence is admitted for its truth as evidence from which one may infer the existence of another fact. 1 Respondent's non-hearsay claim impermissibly relies on the trial court's post-trial written decision, RB 2, 14, 18, because, as discussed in appellant's initial brief at 72, n.7, it was not part ofthe record but was issued more than two years after the trial had concluded. 6 Further, although respondent overlooks it, the extensive on-the-record debate about the issue demonstrates that the court admitted the subscriber information, not as non-hearsay, but for the truth that the Sprint subscriber was "Darnell Patterson" and as circumstantial evidence that appellant was Darnell. Adopting the attorneys' conclusion that the subscriber information was evidence that corroborated Johnson's identification of appellant, which was why counsel withdrew his application for an eyewitness identification expert and how he convinced the court to sever the Johnson trial from the cases that lacked corroboration, the court reasoned that, if it precluded the subscriber information, then severance would no longer be necessary. A157, 159-162, 167-169.2 2 Respondent suggests that counsel "arguably" invited the error by conceding that the subscriber information was the corroborating evidence that was the basis of his severance motion and "therefore could not have claimed after the fact [of an order granting severance] that the evidence should be precluded" and has no basis to argue that the subscriber information was inadmissible. Respondent relies upon People v. Russell, 71 N.Y.2d 1016 (1998) for the proposition that parties should not "piggy-back" procedures such as severance motions and evidentiary submissions. RB 24, n. 8. Contrary to respondent's suggestion, there was no piggy-backing because the court did not resolve the severance issue until after it had rejected counsel's argument that the subscriber information was unreliable hearsay. As the record reflects, after counsel moved to sever the Johnson case, Al59-162, the court held the issue "in abeyance." Al67. Subsequently, counsel asked the court to appoint an expert identification witness in the other cases but not in the Johnson case because, "[a]s it stands right now," there was corroborating evidence in that case. Al68. The court then stated that, "as of this morning," it had decided to grant severance but that counsel's application -- to preclude the subscriber information -- might cause it to "reconsider whether I would sever or consolidate, depending upon how I rule on the admissibility of certain evidence, which is the People's corroboration in that case." Al68-169. After the attorneys argued the evidentiary issue, the court asked counsel, "in terms of the severance that I was prepared to grant," whether, if it precluded the subscriber information, any other corroboration existed; counsel replied, and the court agreed, that there might be if the codefendants, one of whom was on the prosecution's witness list, testified. A 181-182. The court then issued its initial ruling admitting the phone records with the subscriber information, to which counsel objected, specifically asking about "the requirement of duty." A 185-188. Still later, when counsel noted that the severance issue had yet to be resolved, the court ruled that, because of its decision permitting the subscriber information to come in, it was adhering to its decision to grant severance and would do so in any 7 Respondent's non-hearsay claim also overlooks the court's ruling on the admissibility of appellant's "Darnell" tattoo. Accepting the prosecutor's argument that the tattoo incriminated appellant because the name on the phone records was "Darnell," the court reasoned that the only evidence that would make the tattoo relevant is if the name in the subscriber information, Darnell Patterson, "comes in," and concluded that "because of [its] ruling on permitting the subscriber history to come in as part of the Sprint record," it would grant the prosecutor's request to have appellant display his "Darnell" tattoo to the jurors. A220. In addition, the court repeatedly stated that the subscriber information "comes in," further demonstrating that it was admitting it without limitation,· for its truth. Al85-186, Al96. After the court expressed reservations about its initial ruling and the parties resumed the debate, the court expressed the view that the information was being admitted, not for the truth that appellant was in the apartment during the crime, but for the truth that he was the subscriber to the Sprint event because of the possibility that Ms. Goree might testify. A 196-197. During the trial, counsel renewed his evidentiary argumynts and got the court's permission to rely upon them and not to object in front of the jury when the court admitted the records in evidence. A436-437, 445, 457-458. Thus, the record demonstrates that the severance and evidentiary issues were argued and decided separately and that, in stark contrast to Russell, in which counsel failed to object to the admission of evidence and did not renew his severance application based that upon that evidence's admission until after the final jury instructions, 71 N.Y.2d at 1017-1018, counsel fully preserved his objection to the admission of the subscriber information. 8 account and declared that it can be used as circumstantial evidence "if it comes in." A207-209. Challenging the prosecutor's claim that she sought to admit the subscriber information merely as background, the court stated that, "(y]our arguments have to be more than that, and that's why you want it in ... " A210. Thus, the court articulated that the subscriber information was being offered for its truth and rejected the prosecutor's non-hearsay argument. After an overnight adjournment, the court announced that it had "made a decision on the Sprint subscriber information and .... am letting it in," A2 l 8-2 l 9, and "am permitting the subscriber history to come in through a Sprint representative ... " A223. As discussed, the court also ruled that, because it was "permitting the subscriber history to come in as part of the Sprint record," it would permit the prosecutor to have appellant display his "Darnell" tattoo. A220. Significantly, because counsel had limited his business records challenge to the subscriber information portion of the phone records, Al 70-173, the court's ruling can only have been based upon its rejection of counsel's arguments that the challenged evidence was inadmissible hearsay. 9 The dispositive fact, however, is that, when court admitted the Sprint and T-Mobile records "in evidence," it did not give a limiting instruction, A445, 457-458, and its final instructions did not include one. Moreover, in summation, the trial assistant urged the jurors to consider the records for their truth, declaring, among other things, that "[y]ou can't put a red bandana on subscriber's information .... and that's the key to this case ... You can't question it. It's in evidence. It's a business record." A5 l 3. Citing the subscriber information, she argued that the records proved that "the man in the apartment that night was Robert Patterson." A514-516. • Thus, as in People v. Brensic (Young), 70 N.Y.2d 9, 24-25 (1987), in which the court did not give an instruction limiting the jurors' consideration of a non-testifying co-defendant's confession and, in summation, the prosecutor referred to it as evidence of defendant's guilt, "it is clear the jury was invited to consider the [subscriber information] for the truth of the matter asserted in it. Consequently the [subscriber information] constituted h " earsay ... Contrary to respondent's central claim, the trial court did not admit the subscriber information as non-hearsay. As discussed in appellant's initial brief at 42-44,· because the trial court rejected the prosecutor's non- 10 hearsay argument and did not consider the argument that the subscriber information was "independently admissible," the Appellate Division exceeded its authority when it affirmed appellant's convictions on those grounds and this Court may not review its decision. C.P.L. §470.35. Respondent's reliance on People v. Nicholson, _ N.Y.3d _, 2016 WL 633925, RB 15-19, is misplaced. As discussed here and in appellant's initial brief at 6-16, the court exhaustively explained its evidentiary ruling permitting the subscriber information to "come in" as part of the phone records it admitted without limitation under the business records exception. As Nicholson explicitly noted, "where the trial court's decision is fully articulated the Appellate Division's review is limited to those grounds," Slip op. at 5. Moreover, Nicholson emphasized that "the type of appellate overreaching prohibited by CPL 4 70.15(1 )" occurs when the Appellate Division "renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant's favor." Id. at 4-5. Because the Appellate Division affirmed appellant's convictions on the "non-hearsay" ground that the trial court decided in his favor and on the "independently admissible" ground that the trial court did 11 not address, it exceeded its statutory authority, C.P.L. §470.15(1), and its decision is beyond this Court's power of review. C.P.L. §470.35. Contrary to Respondent's Claim, the Subscriber Information was Not Non-Hearsay but was Admitted for the Truth that Appellant was the Sprint Subscriber Registered to Darnell Patterson and as Circumstantial Evidence that He Robbed Michael Johnson Despite the extensive record demonstrating that the subscriber information was admitted in evidence for its truth, respondent insists that it was admitted as non-hearsay. Thus, it posits that the subscriber information was not admitted for the truth that the subscriber was Darnell Patterson but for the fact that "someone activated the phone under that name." RB 14. It asserts not only that the subscriber information was not admitted for the truth that appellant and Ms. Goree activated the respective phones but also that "who activated the phones [had] nothing to do with the commission of the crime." RB 22, 23-24. According to respondent, "[t]he information was instead introduced to establish the fact that individuals activated the .... numbers, by providing particular information that was associated, respectively, with defendant and Goree." Therefore, it concludes, "there was no hearsay violation, because the subscriber information was not introduced for its truth, but to complete the narrative and to allow the jury to 12 make its proper inferences that defendant committed the crime that night." RB 23 (emphasis added). Initially, as appellant asserted m his initial brief at 52 and as respondent does not directly dispute, evidence that someone other than appellant had activated the Sprint account would have had no relevance at appellant's trial. Moreover, respondent errs in positing that evidence from which jurors could draw an inference was not admitted for its truth. Evidence from which one may draw an inference is regularly referred to as circumstantial evidence. J1&, People v. Hardy, 26 N.Y.3d 245, 250 (2015)(in larceny prosecution, defendant's statement that he did not have the stolen purse but could get it was circumstantial evidence because it included "inculpatory facts from which the jury may or may not have inferred guilt"). As discussed in appellant's initial brief at 63-64, and as respondent does not dispute, circumstantial evidence is direct evidence of a fact from which another fact may be inferred and is therefore introduced for its truth. Indeed, the court's instructions underscored the hearsay nature of circumstantial evidence as they permitted appellant's jurors to infer a fact "based on prove [sic] of a fact," but only if the jurors found that the 13 prosecution had proven the initial fact beyond a reasonable doubt. A526. Thus, that instruction required that, before the jurors could infer from the phone records that appellant was one of the robbers, they not only had to consider the subscriber information for its truth, but also find that the prosecution had proven its truth beyond a reasonable doubt. Contrary to respondent's claim, then, the subscriber information was admitted for the truth of the "act, transaction, occurrence or event," CPLR 4518(a), that "Darnell Patterson" and "Daichele Merrero'' opened the pre- paid Sprint and T-Mobile accounts. Based upon that evidence, and the fact that appellant had the name, "Darnell," tattooed to his hand, the jurors were permitted to infer that Robert Patterson was Darnell Patterson. As counsel consistently argued, however, because subscribers to pre- paid cell phone accounts have no business duty to provide accurate identification information, the subscriber information did not qualify for admission under the business records exception but was inadmissible hearsay. Respondent's non-hearsay claim raises the question whether the court could have fashioned an effective limiting instruction. As discussed in appellant's initial brief at 72, when evidence is received for a limited, non- 14 hearsay purpose, the court is required to give a proper limiting instruction . .E:&, People v. Garcia, 25 N.Y.3d 77 (2015). Notably, the trial court expressed its concern that, if it admitted the subscriber information to explain the investigation, "there's a huge danger that the jury can't follow that instruction ... " A209. Appellant contends that a limiting instruction regarding respondent's present non-hearsay theory would require the jurors to perform even more difficult mental gymnastics - to consider the subscriber information contained in the phone records merely as evidence that "someone else" had activated the Sprint account using the name, "Darnell Patterson," and appellant's date of birth - making such a charge all but impossible to follow. As discussed, that the court failed to give a limiting instruction when it admitted "in evidence" the two sets of phone records and in its final charge demonstrates that it did not admit the subscriber information for a limited, non-hearsay purpose. Assuming arguendo, that, as respondent claims, the subscriber information was admitted for a limited purpose, the court's failure to give a limiting instruction was independent error, as discussed in appellant's initial brief at 72-73. Respondent's assertion that counsel forfeited any claim that a limiting charge should have been given, 15 RB 24-25, is belied by the record. As discussed in appellant's initial brief at 9-10, pre-trial, both attorneys stated that, if the court admitted the subscriber information for a non-hearsay purpose, the court would have to give the jurors a limiting charge. Al 76-178. The possibility that counsel might have decided to forego as ineffectual an instruction limiting the jurors' consideration of the subscriber information is dispelled by his stating, in connection with evidence concerning appellant's pre-trial confinement on Rikers Island, that "[ o ]f course" he wanted a limiting instruction regarding that evidence, despite his belief that it would not cure the prejudice. A440. That, following counsel's prompt objections and off-the-record colloquies, the court gave limiting charges when Detective Ferretti testified that his investigation yielded the names on the two sets of phone records further demonstrated that, when the subscriber information was at issue, counsel forfeited nothing. Respondent's related claim that there would have been no reason for the court to give a limiting charge sua sponte, because it did so during the detective's testimony, RB 25, overlooks the fact that, during the detective's testimony, the phone records were not in evidence. When the court later admitted the two sets of phone records "in evidence," A 445, 457-458, it did 16 not give a limiting charge. Moreover, during the detective's testimony, the court explained that it was limiting the jurors' consideration of his testimony about his investigation because the records were not in evidence. A397-398, 400-401. Plainly, once the court admitted both sets of phone records "in evidence," without limitation, its earlier admonition no longer applied. Thus, the court gave no limiting instruction either when the phone records were introduced in evidence or during its final charge, as it should have. ~' People v. Brensic, 70 N.Y.2d at 16 (when court admits declaration against penal interest, it should give proper limiting instruction when testimony is introduced and during its final jury charge). Respondent's remaining contentions - that the JUrors must have known from the attorneys' arguments, the phone companies' representatives' testimony and the records themselves that the subscriber information could be inaccurate - are beside the point because there is no substitute for proper instructions by the court. ~' People v. Garcia, 25 N.Y.3d at 87. Although both attorneys put the court on notice that a limiting charge was required if it admitted the subscriber information for a non- hearsay purpose, the court never instructed the jurors to consider the subscriber infonnation for anything but its truth. 17 Respondent's Claim that the Johnson v. Lutz Line of Cases Does Not Apply Here Because, Unlike the Evidence in Those Cases, the Subscriber Information was Not Direct Evidence of Appellant's Culpability, is Unpreserved and Without Merit Respondent contends that the rule of Johnson v. Lutz, which requires that each person who contributes to the making of a business record have a business duty to provide infonnation to the record maker, does not apply to this case because, in the Johnson v. Lutz line of cases, the inadmissible hearsay constituted direct evidence of a party's culpability or liability. RB 26-32. Respondent, however, failed to make that argument below and it is therefore unpreserved and beyond this Court's jurisdiction. ~' People v. Jackson, 8 N.Y.3d 869, * (2007)(as prosecution failed to offer evidence under theory advanced on appeal, theory's merits were not before the Court for review); People v. Nieves, 67 N.Y.2d 125, 131 (1986)(prosecution may not rely on a theory of a statement's admission on appeal that it did not advance at trial); C.P.L. §470.35. In any event, the claim lacks merit. First, the Johnson v. Lutz line of cases did not turn on a perceived distinction between direct and circumstantial evidence. Indeed, as this Court has recognized, in terms of 18 probative value, there may be no distinction. Ji.&, People v. Geraci, 85 N.Y.2d 359, 369 (1995)(circumstantial evidence is not a disfavored form of proof and may be stronger than direct evidence when it depends on undisputed facts). Instead, the Johnson v. Lutz line of cases was based upon the fundamental principle that, to qualify as a hearsay exception, evidence, specifically hearsay within a business record, must be inherently reliable. In any event, respondent's claim that Johnson v. Lutz and progeny exclusively concerned direct evidence of culpability or liability is refuted by cases on which it relies. From the Court's decision in People v. Ortega, 15 N.Y.3d 610 (2010), it appears that the hospital records at issue contained statements by the victims describing the criminal conduct to which they were subjected but did not identify the individuals who committed the crimes. In Ortega, after the complainant was forced to ingest drugs and withdraw money from a bank, he told hospital staff that he had been forced to smoke a white substance from a pipe; the defendant was arrested later and found to possess the complainant's property. Id. at 616, 620. In the companion case, Bentsen, the complainant "reported to medical personnel that she had been strangled by an old boyfriend ... ," again, apparently without identifying the perpetrator. Id. at 614, 618. Thus, respondent's 19 assertion that "the statements in Ortega directly inculpated the defendants," RB 32, is incorrect. In another case on which respondent relies, Matter of Leon RR, 48 N.Y.2d 117, 120, 124-125 (1979), a parental rights termination proceeding, the "ultimate issue" was whether the respondent-parents had made inadequate future plans for their child (emphasis added). The case file of the petitioner-agency contained admissible entries documenting caseworkers' first-hand observations and "statements, reports and even rumors made by persons under no business duty to report to petitioner," which this Court held were inadmissible under the rule of Johnson v. Lutz. Id. at 122-123. Because the ultimate issue concerned the adequacy of the parents' future plans, the fact-finder was necessarily required to determine whether evidence of past events supported an inference about the future plans' adequacy. Accordingly, the evidence at issue in that important initial declarant, business records exception case was not direct, but circumstantial. Similarly, the subscriber information in the present case was direct evidence that the people named in the phone records had activated the pre- paid accounts and, taken with the "Darnell" tattoo, circumstantial evidence that appellant was one of the men who committed the robbery but, because 20 the subscribers lacked a business duty to impart the information to the maker of the record, was inadmissible hearsay. Respondent's additional arguments - that Leon RR should be confined to its facts and that in two cases that followed Leon RR, this Court did not address the initial declarant rule - RB 31-33, are also unpreserved and without merit. Contrary to respondent's suggestion, the controlling precedent is not Leon RR because that decision simply applied the rule of Johnson v. Lutz. Thus, that neither People v. Kennedy, 68 N.Y.2d 569 ( 1986) nor People v. Ortega, supra, cited Leon RR signifies nothing. Kennedy did not even involve the initial declarant rule because the evidence at issue there consisted of entries an alleged bookkeeper made in his diaries and the legal issue before the court whether the prosecution met the foundation requirements of CPLR 45 l 8(a). People v. Kennedy, 68 N.Y.2d at 579-580. At issue in Ortega was whether entries in medical records reporting the statements of crime victims satisfied the business records exception; the Court held that they did because they were relevant to diagnosis and treatment and were therefore made in the regular course of the hospital's business. 15 N.Y.3d at 617. 21 Significantly, both the majority opinion in Ortega and former Judge Smith's concurrence emphasized the inherent reliability of such statements. People v. Ortega, 15 N.Y.3d at 617 ("[h]ospital records .... are trustworthy as they are designed to be relied upon in matters of like and death .... and .... reflect the condition of a patient who has the clear motivation to report accurately"); 621 ("[s]tatements to one's own doctor or health care professional have an intrinsic guarantee of reliability"). The subscriber information at issue in this case clearly offered no comparable assurance of reliability. Respondent's Claim that the Admission of the Subscriber Information was Harmless is Refuted by the Record Respondent's contention that there is no likelihood that the verdict would have been different had the jury not learned of the subscriber information relies on the identification testimony of Michael Johnson, a pawnshop employee's testimony that, the night of the robbery, "Daichele Goree" pawned some jewelry and evidence from phone records without the subscriber information. RB 33-35. Initially, respondent's claim concerning the pawned goods ignores the trial assistant's concession that the pawnshop evidence did not inculpate appellant. A165-167. Moreover, the phone records, which showed that, 22 while confined on Rikers Island, appellant called some of the same numbers called from the Sprint cell phone, were far less prejudicial than the erroneously admitted subscriber information. Respondent's reliance on Johnson's identification testimony is also misplaced. As discussed in appellant's initial brief at 55-62, Johnson's opportunity to accurately identify the masked gunmen was hampered by their sudden appearance in the room where he and Michelle were about to have sex, his apparent focus on the men's guns, and possibly by his drug use, as he testified both that he had and had not smoked marijuana by that time. Respondent's claim of harmless error also ignores the 911 tapes, in which Johnson repeatedly told the operator that he could not describe the men except to say they were black and wore masks and that he was immediately ordered to the floor. Even when the operator called Johnson back, he was unable to describe the men. Moreover, as Johnson testified, as a result of his childhood exposure to lead paint poisoning, he stuttered when he was excited but did not stutter during the 911 calls. Contrary to respondent's claim, RB 33-34, that Johnson did not stutter during those calls was significant because it refuted the trial assistant's summation argument 23 that his inability to describe the robbers was because he was too "freaked out." A505-507. Nor does respondent's harmless error analysis address Johnson's dubious credibility. He falsely testified before the Grand Jury that he had never sold drugs and did not keep drugs in his apartment and greatly over- stated the duration of the robbery. Although Johnson insisted that he gave Detective Ferretti descriptions of the robbers' comparative heights, weights and skin tones, Ferretti acknowledged that Johnson gave only very general descriptions. As respondent also fails to acknowledge, in summation, the trial assistant stressed the importance of the subscriber information, declaring that, because of it, it was no longer a one-witness identification case. The phone records, she proclaimed, were ''the key to this case," as they corroborated Johnson's testimony and proved that appellant was one of the robbers. A513-519, 522-524. Respondent similarly fails to address the jurors' deliberations, when they asked for and received the phone records of "Michelle and Robert Patterson." Even with that evidence before them, they deliberated over the course of four days before they found appellant not guilty of the top counts 24 of first-degree robbery and burglary but convicted him of second-degree offenses. Because the first-degree crimes required proof that the robbers displayed what appeared to be firearms and the only evidence on the subject consisted of Johnson's testimony, it is reasonable to infer that the jurors did not find his testimony proved that element beyond a reasonable doubt. Because, aside from the subscriber information, Johnson's testimony was the critical evidence that linked appellant to the crime, there is every reason to believe that, if the court had excluded that inadmissible evidence, the jurors would have rejected Johnson's uncorroborated claim that appellant was one of the masked robbers. Respondent's Policy Argument that, "Where Pre-Paid Cell Phone Accounts Contain Subscriber Information, the Jury Should Be Able to Learn what the Subscriber Information Is," Would Require This Court to Overrule Johnson v. Lutz Respondent's policy argument is that because, in several decisions it cites, criminal defendants used pre-paid cell phones, "the admission into evidence of subscriber information connected with pre-paid phone accounts serves an important truth-seeking function." RB 35.3 Therefore, it claims, "where pre-paid cell phone accounts contain subscriber information, the jury 3 It should go without saying that, just because some criminals use pre-paid cell phones, does not mean that all pre-paid phones belong to criminals. Pre-paid accounts are attractive, for example, to parents who wish to limit their children's cell phone usage and to adults who use cell phones only occasionally. 25 should be able to learn what the subscriber information is" and advocates its "admission into evidence." RB 38-39. Respondent is therefore advocating the admission of subscriber information for its truth. Indeed, without addressing appellant's arguments at 63-67 that the Appellate Division's holding the subscriber information "independently admissible" lacked legal support, respondent has adopted that conclusion. Significantly, respondent's argument, which calls for the unlimited "admission into evidence of [pre-paid] subscriber information" to promote the "truth-seeking process," is in tension with its central claim that the unlimited admission of the subscriber information in the present case was for a non-hearsay purpose. Even more significantly, implementing respondent's proposed policy would require this Court to overrule the Johnson v. Lutz line of cases. This Court should decline to do so, first, because the initial declarant rule of Johnson v. Lutz furthers the fundamental evidentiary principle that reliability is the touchstone of admissibility. Nucci v. Proper, 95 N.Y.2d 597, 602 (2001 ). The requirement that every contributor to a business record be acting under a business duty is what makes hearsay contained in a business record reliable enough to qualify for admission as a hearsay 26 exception. Since Johnson v. Lutz was decided in 1930, its initial declarant rule has been adopted in jurisdictions across the country. In New York, the rule is routinely applied and relied upon in a myriad of business settings. Were this Court to overrule the Johnson v. Lutz line of cases, formerly inadmissible hearsay would be deemed admissible in criminal and civil cases alike. Thus, were this Court to implement respondent's proposed policy in this case involving pre-paid phone records, there would be nothing to prevent its being applied to any other business record that contains hearsay. To paraphrase Leon RR, "[t]o construe [hearsay within a business record] as admissible simply because [the recorder] is under a business duty to record would be to open the floodgates for the introduction of random, irresponsible material beyond the reach of the usual tests for accuracy - cross-examination and impeachment of the declarant." Leon RR, 48 N.Y.2d at 123. Implementing respondent's policy would also require the Court to depart from its traditional adherence to stare decisis. Recently, in Matter of State Farm Mut. Auto. Ins. Co. v. Fitzgerald, 25 N.Y.3d 799, 819-820 (2015), Judge Abdus-Salaam wrote: Even if we were to disagree with our holding in [a 1988 precedent], we would nonetheless be bound to follow it under 27 the doctrine of stare decisis. "'Stare decisis is the doctrine which holds that common-law decisions should stand as precedent for guidance in cases arising in the future' and that a rule of law 'once decided by a court, will generally be followed in subsequent cases presenting the same legal problem.'" [internal citations omitted]. Even under the most flexible version of the doctrine applicable to constitutional jurisprudence, prior decisions should not be overruled unless a "compelling justification" exists for such a drastic step. Even if this Court thought that the rule of Johnson v. Lutz were unsound, principles of stare decisis would weigh heavily in favor of retaining it. In Palladino v. CNY Centro Ins., 23 N.Y.3d 140, 150-151 (2014 ), the Court, "mindful of the 'eminently desirable and essential doctrine of stare decisis"' declined to overrule its precedent "despite questioning its continued utility and wisdom." In Nucci v. Proper, 95 N.Y.2d at 604 n.2, this Court declined an invitation to recognize a hearsay exception for prior unsworn, oral statements even when the declarant was available and subject to cross- examination. In light of the Court's "requirement of sufficient indicia of reliability for out-of-court statements offered under exceptions to the hearsay rule," it retained its adherence to the traditional approach. The rule of Johnson v. Lutz, which forms a cornerstone of evidentiary law in this State 28 and in jurisdictions across the country, remains of unquestionable utility and wisdom and should not be disturbed. In conclusion, for the reasons stated here and in appellant's initial brief, this Court should reverse the order of the Appellate Division and direct that a new trial be held. March, 2016 Respectfully submitted, ~lto SEYMOUR W. JAMES, JR. ELLEN DILLE Attorneys for Defendant- Appellant The Legal Aid Society Criminal Appeals Bureau 199 Water Street New York, New York 10038 (212) 577-3285 29
