The People, Respondent,v.Anthony Oddone, Appellant.BriefN.Y.November 14, 2013 To Be Argued By: ANNE E. OH Time Requested: Thirty Minutes COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Court of Appeals Case Respondent, No. APL-2013-00080 - against - App. Div. Case No. 2010-04080 ANTHONY ODDONE, Suffolk Co. Indictment No. 2168-08 Defendant-Appellant. ------------------------------------------------------------------x BRIEF OF RESPONDENT THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Respondent Criminal Courts Building 200 Center Drive Riverhead, New York 11901 (631) 852-2500 ANNE E. OH Assistant District Attorney Of Counsel TABLE OF CONTENTS Page Table of Authorities .......................................................................................... i Preliminary Statement ....................................................................................... 1 Introduction ....................................................................................................... 3 Issues Presented ................................................................................................ 5 Statement of Facts ............................................................................................. 6 1. Ladies Night at the Southampton Publick House .............. 6 2. Andrew Reister encounters defendant, who is confrontational and belligerent .......................................... 11 3. Defendant readjusts and maintains the chokehold ............. 17 4. Witnesses recall that defendant choked Reister, who was unconscious on the floor, for two to three minutes ............................................................................... 22 5. Defendant flees the scene ................................................... 25 6. Defendant’s arrest .............................................................. 28 7. Andrew Reister never regains consciousness .................... 29 8. The autopsy ........................................................................ 31 9. Andrew Reister did not have a heart condition that caused his death ................................................................. 34 10. The defense case ................................................................ 36 11. The verdict and sentence .................................................... 41 Point One ........................................................................................................... 42 THE TRIAL COURT’S EVIDENTIARY RULINGS WERE CORRECT, NOT AN ABUSE OF DISCRETION AND SHOULD THEREFORE BE AFFIRMED. TABLE OF CONTENTS (continued) Page 1. Standard of Review ............................................................ 42 2. The trial court properly denied defendant’s belated application to strike Dr. Wilson’s conclusions .................. 43 a. The relief requested ................................................. 43 b. Procedural background ............................................ 45 c. Factual background .................................................. 47 d. Defendant’s argument on appeal is not properly preserved and is also based on facts that were not presented to the trial court ................. 49 e. The trial court properly denied defendant’s application for a Frye hearing ................................. 53 f. Defendant misconstrues this Court’s holding in Parker v Mobil Oil Corp. .................................... 57 3. The trial court’s decision to preclude the expert testimony of Dr. Steven Penrod was a sound exercise of discretion ......................................................... 63 a. Factual background .................................................. 64 b. Standard of Review.................................................. 68 c. The trial court properly ruled that LeGrand and its progeny were not applicable to this case ........................................................................... 69 4. The trial court properly prohibited defendant from questioning his own witness with a prior unsworn unwritten statement ............................................................ 74 a. Factual background .................................................. 74 b. The trial court properly prohibited defendant from attempting to refresh the witness’s recollection .............................................................. 77 c. CPL §60.35 governs the use of statements to refresh recollection and the Surprise Doctrine is inapplicable ........................................... 79 TABLE OF CONTENTS (continued) Page d. Defendant’s challenge to the constitutionality of CPL §60.35 is unpreserved for appellate review and without merit ............................................................ 80 Point Two .......................................................................................................... 83 DEFENDANT WAS NOT DEPRIVED OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY. 1. Juror Number Three: FO, A classic case of juror’s remorse and an improper attempt to impeach the verdict ................................................................................. 84 a. Defendant’s motion to set aside the verdict and the trial court’s decision .................................... 84 b. The arrest of FO’s son was not an improper outside influence ...................................................... 87 c. Background Facts: FO’s history as a juror vs. defendant’s portrayal of FO in his motion to set aside the verdict ................................. 90 i. The disqualification of Juror Number Twelve ........................................................... 91 ii. The disqualification of Juror Number Ten ................................................................. 94 iii. FO attempts to disqualify Juror Number Twelve ............................................. 95 d. FO’s post-verdict affidavit – a prohibited insight into a juror’s internal struggle during deliberations ............................................................. 98 e. FO capitulated the majority and defendant’s motion is an impermissible attempt to impeach the jury verdict .......................................... 102 2. The trial court did not abuse its discretion when it denied defendant’s application to disqualify TB as “grossly unqualified” under CPL §270.35(1) .................... 110 TABLE OF CONTENTS (continued) Page a. Factual background .................................................. 110 b. The trial court’s refusal to disqualify TB under CPL §270.35(1) was a sound exercise of discretion ............................................................. 112 i. TB’s attempt to console CD was not substantial misconduct .................................. 113 ii. TB’s transfer to the police department as a civil servant did not render her grossly unqualified ........................................ 116 Point Three ........................................................................................................ 119 THE PROSECUTOR’S SUMMATION WAS PROPER IN ALL RESPECTS AND DID NOT VIOLATE DEFENDANT’S FIFTH AMENDMENT RIGHTS OR DEPRIVE HIM OF HIS RIGHT TO A FAIR TRIAL. 1. The summations ................................................................. 119 2. Defendant’s Fifth Amendment claim is unpreserved ........................................................................ 123 3. Defendant’s unpreserved Fifth Amendment claim is without merit .................................................................. 125 4. Defendant’s remaining claims are also unpreserved and without merit ............................................................... 127 5. Any error was harmless...................................................... 133 Point Four .......................................................................................................... 134 THE TRIAL COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR A JURY INSTRUCTION ON INTOXICATION. 1. Introduction ........................................................................ 134 2. The rule of law ................................................................... 134 3. No evidence existed that defendant consumed alcohol or appeared intoxicated ......................................... 137 TABLE OF CONTENTS (continued) Page 4. No question of law exists warranting the Court’s review ................................................................................. 142 Conclusion ........................................................................................................ 144 Certification ............................................................................................................. 145 i TABLE OF AUTHORITIES Page United States Supreme Court Carmell v Texas, 529 U.S. 513 (2001) ............................................................. 42 Chambers v Mississippi, 410 U.S. 284 (1973)81-2 Mattox v United States, 146 U.S. 140, 149 (1892) ........................................... 94 Parker v Gladden, 385 U.S. 363 (1966) ....................................................... ..103 Smith v Phillips, 455 U.S. 209 (1982) .......................................................... ..106 Federal Court Brookes v Dretke, 444 F3d 328, 332 (5th Cir 2006) .................................... ..107 Frye v United States, 293 F 1013 (1923) .......................................................... 46 Rivas v Fisher, 687 F3d 514, 544 (2d Cir 2012) .............................................. 61 United States v Graves, 465 FSupp2d 459 (ED Pennsylvania 2006) ............... 73 United States v Daugerdas, 867 FSupp2d 445 (SDNY 2012) ..................... ..115 United States v Jakobetz, 955 F2d 786 (2d Cir 1992) ...................................... 56 Court of Appeals: Bullard v Pearsall, 53 N.Y. 230 (1873) ........................................................... 79 Meiselman v Crown Hgts. Hosp., 285 N 389 (1941) ................................ 55-6,61 Parker v Mobil Oil Corp., 7 NY3d 434 (2006) ........................................ 46,57-8 People v Anonymous, 96 NY2d 839 (2001) ................................................... 125 People v Ashwal, 39 NY2d 105 (1976) .......................................................... 125 People v Aska, 91 NY2d 979 (1998) ................................................................ 42 People v Baumann & Sons Buses, Inc., 6 NY3d 404 (2006) ............................ 81 People v Boettcher, 69 NY2d 174 (1987) ....................................................... 103 People v Borges, 69 NY2d 1031 (1987) ...................................................... 42,83 People v Brown, 48 NY2d 388 (1979) .............................................. 85,88-9,113 People v Brown, 56 NY2d 242 (1982) ........................................................... 105 People v Buford, 69 NY2d 290 (1987) ................................................. 112-3,116 People v Carroll, 95 NY2d 375 (2000) ............................................................ 42 People v Clark, 81 NY2d 913 (1993) ............................................................. 113 People v Cona, 49 NY2d 26 (1976)................................................................ 124 People v Crimmins, 36 NY2d 230 (1975) ...................................................... 133 People v Crimmins, 38 NY2d 407 (1975) ...................................................... 133 People v Cronin, 60 NY2d 430 (1983) ......................................................... .68-9 People v DeLucia, 15 NY2d 294 (1967) ................................................ 88,103-4 People v DeLucia and Montella, 15 NY2d 294 (1965) ............................... 103-4 ii TABLE OF AUTHORITIES (continued) Page People v Farnsworth, 65 NY2d 734, 735 (2011) ........................................... 134 People v Fitzpatrick, 40 NY2d 44 (1976) ......................................................... 78 People v Friedgood, 58 NY2d 467 (1983) ....................................................... 88 People v Gaines, 83 NY2d 925 (1994) ........................................................... 135 People v Genovese, 10 NY2d 478 (1962) ......................................................... 87 People v Gillyard, 13 NY3d 351 (2009) ......................................................... 133 People v Gray, 86 NY2d 10 (1995) .................................................................. 45 People v Halm, 81 NY2d 819 (1993) ............................................................. 126 People v Harris, 98 NY2d 452 (2002) ........................................................... 124 People v Harris, 19 NY3d 679 (2012) ............................................................. 83 People v Hawkins, 11 NY3d 484 (2008) .......................................................... 45 People v Hetenyi, 304 N.Y. 80 (1952) ............................................................ 126 People v Hicks, 6 NY3d 737 (2005) ............................................................... 118 People v Hudy, 73 NY2d 40 (1988) .................................................................. 42 People v Irizarry, 83 NY2d 557 (1994) ............................................................ 88 People v Lavalle, 3 NY3d 88 (2004) .............................................................. 124 People v Lee, 96 NY2d 157 (2001) .......................................................... 68-9,70 People v Legister, 75 NY2d 832 (1990) ......................................................... 105 People v LeGrand, 8 NY3d 449 (2007) .............................................. .46,66,70-3 People v Maragh, 94 NY2d 569 (2000) .............................................. 87-9,105-6 People v Mejias, 21 NY3d 73 (2013) ............................................................. 113 People v Mirenda, 23 NY2d 439 (1969) ........................................................ 126 People v Montanez, 41 NY2d 1144 (1976) ...................................................... 43 People v Oddone, 19 NY3d 866 (2012) ............................................................. 2 People v Oddone, 20 NY3d 1102 (2013) ........................................................... 2 People v Perry, 62 NY2d 849, 850 (1984) ..................................................... 134 People v Reed, 40 NY2d 204 (1976) ................................................................ 43 People v Riback, 13 NY3d 416 (2009) ........................................................... 127 People v Rickert, 58 NY2d 122 (1983) ............................................................. 84 People v Rodriguez, 71 NY2d 214 (1988) ........................................................ 87 People v Rodriguez, 100 NY2d 30 (2003) ........................................................ 87 People v Romero, 7 NY3d 911 (2006)............................................................ 124 People v Santi, 3 NY3d 234 (2004) ................................................................ 111 People v Santiago, 17 NY3d 661 (2011) .......................................................... 71 People v Sirico, 17 NY3d 744 (2011) .......................................................... 135-6 People v Sprague, 217 NY 373 (1916) ........................................................... 103 iii TABLE OF AUTHORITIES (continued) Page People v Tardbania, 72 NY2d 852 (1988) ..................................................... 130 People v Testa, 61 NY2d 1008 (1985) ......................................................... .87-8 People v Tonge, 93 NY2d 838 (1999) ............................................................ 130 People v Wernick, 89 NY2d 111 (1996) ........................................................... 46 People v Wesley, 83 NY2d 417 (1994) ................................................... 46,54,56 People v Williams, 46 NY2d 1070 (1979) ...................................................... 124 People v Williams, 81 NY2d 303 (1993) ....................................................... 81-2 Selkowitz v County of Nassau, 45 NY2d 97 (1978) .......................................... 68 Stouter v Manhattan Ry. Co., 127 N.Y. 661 (1891) ......................................... 55 Appellate Divisions Alston v Sunharbor Manor, LLC, 48 AD3d 600 (2d Dept 2008) ..................... 46 Diejoia v Gacioch, 42 AD3d 977 (4th Dept 2007) ..................................... 52, 57 Ellis v Eng, 70 AD3d 887 (2d Dept 2010) ........................................................ 46 Lipschitz v Stein, 65 AD3d 573 (2d Dept 2009) .......................................... 46,52 Nappi v Gerdts, 103 AD2d 737 (2d Dept 1984) ............................................... 77 Nonnon v City of New York, 32 AD3d 91(1st Dept 2006) ................................ 46 People v Harrell, 284 AD2d 248 (1st Dept 2001) ............................................ 86 People v Lehrman, 155 AD2d 693 (2d Dept 1989) ........................................ 103 People v Liguori, 149 AD2d 624 (2d Dept 1989) .......................................... 102 People v Maddox, 139 AD2d 598 (2d Dept 1988) ......................................... 102 People v Oddone, 89 AD3d 868 (2d Dept 2011) ..... ..1,44,45,68,79,83,125,142 People v Robinson, 61 AD3d 784 (2d Dept 2009) ........................................... 52 People v Smalls, 112 AD2d 173 (2d Dept 1985) ............................................ 102 People v Smith, 43 AD3d 475 (2d Dept 2007) ............................................... 136 People v South, 47 AD3d 734 (2d Dept 2008) ................................................. 56 Zito v Zabarsky, 28 AD3d 42 (2d Dept 2006) .................................................. 57 Other State Courts Benn v United States, 978 A2d 1257 (DC 2009) .............................................. 73 Perry v Bailey, 12 Kan 539, 545 (1874) ........................................................... 73 State v Henderson, 208 N.J. 208 (2011) ........................................................... 73 State v Lawson, 352 Or 724 (2012) .................................................................. 73 iv TABLE OF AUTHORITIES (continued) Page Other Authorities Arthur Karger, The Powers of the New York Court of Appeals, §21:15 (3d Rev 2005) ............................................................................. 43 Prince, Richardson on Evidence, 11th Evidence §§ 7-311; 7-15 ...... ..29,55-6,61 5 NY Prac, Evidence in New York State and Federal Courts, §6:80, p 2 (West 2003) ........................................................................... 77 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Court of Appeals Case Respondent, No. APL-2013-00080 - against - App. Div. Case No. 2010-04080 ANTHONY ODDONE, Suffolk Co. Indictment No. 2168-08 Defendant-Appellant. ------------------------------------------------------------------x PRELIMINARY STATEMENT Anthony Oddone (defendant) appeals his judgment of conviction entered, after a jury trial, in the County Court of Suffolk County (Hinrichs, J.) of one count of Manslaughter in the First Degree. On April 14, 2010, he was sentenced to a determinate sentence of twenty-two years incarceration with five years post-release supervision. On June 22, 2010, defendant appealed to the Appellate Division and on November 9, 2011, the Appellate Division, Second Department affirmed the conviction but reduced defendant’s sentence from 22 years to 17 years incarceration.1 1 People v Oddone, 89 AD3d 868 (2d Dept 2011). 2 On November 29, 2011, defendant sought leave to appeal to the Court of Appeals. On May 24, 2012, after five months of due consideration and after submission of lengthy arguments by the parties, Honorable Theodore T. Jones denied leave to appeal.2 On or about June 3, 2012, defendant moved the Court to reconsider Judge Jones’ decision. The matter was assigned to Judge Jones and was pending decision until Judge Jones passed away on November 6, 2012. On November 28, 2012, the case was reassigned to the Honorable Eugene F. Piggot, Jr. who granted leave to appeal on March 29, 2013.3 2 People v Oddone, 19 NY3d 866 (2012). 3 People v Oddone, 20 NY3d 1102 (2013). 3 INTRODUCTION This was a simple case. Numerous eyewitnesses testified that defendant placed Andrew Reister in a headlock and continued to choke him even when it became apparent that Reister was in grave danger. They desperately begged defendant to stop: “Stop it, you’re choking him, you’re choking him, let go” (A1330),4 “get off him, let him go, he’s out” (A1535), “Dude, you’re fucking killing him” (A1161, A1172-73), “let him go, you’re hurting him” (A2177), “get off, get off…get the F off” (A2396, A2505). Notwithstanding their pleas, defendant maintained his death grip and applied such tremendous force that he fractured two bones and caused massive trauma (tearing, hemorrhaging, bruising) to the muscle and tissues in Reister’s neck. At trial and on appeal to the Appellate Division, Second Department, defendant unsuccessfully attempted to divert the jury from the overwhelming evidence of his guilt by arguing that Andrew Reister died as a result of happenstance – the unfortunate result of a “freak”5 medical reaction. Defendant contended that after Reister attacked him without provocation, he acted in self- 4 Numbers following “A” refer to the page in Defendant’s Appendix submitted on direct appeal to the New York State Court of Appeals. 5 In defendant’s brief to the Appellate Division, defendant argued that “Mr. Reister died from a freak, nervous reaction that caused his heart to stop” (Defendant’s Brief, p 117). Of course, regardless of the mechanism of death, Andrew Reister died because defendant subjected him to a relentless chokehold that killed him. At most, defendant’s theory addressed only his state of mind, presumably defendant’s theory was that the shorter the duration of the chokehold, the less intent was proven. 4 defense and contained Reister in a neck hold in self-defense. Unsuccessfully, defendant attempted to convince a jury that he inadvertently “stimulated” Reister’s carotid sinus, thereby inducing a medical anomaly in as little as fifteen seconds that ceased the beating of Reister’s heart. Thus, the blame was not to lie with defendant who choked an unconscious man before a crowd of people begging him to stop. Instead it was with the allegedly aggressive Andrew Reister, whose alleged obesity, high blood pressure, heart disease and sleep apnea, defendant speculated, predisposed Reister to death by carotid sinus stimulation. This case was a factual one. It involved the jury’s assessment of the evidence presented at trial regarding defendant’s intent as evidenced by his conduct and the deadly consequence of his actions. The jury took its oath seriously and deliberated for several days before it acquitted defendant of Murder in the Second Degree (intentional murder) and convicted defendant of Manslaughter in the First Degree (intent to cause serious physical injury). Likewise, the trial court also took seriously its role in ensuring that defendant received a fair trial and its rulings are supported by the record. The Appellate Division affirmed and, respectfully, the late Honorable Theodore T. Jones was correct when he denied leave to appeal. As we demonstrate below, there is no question of law that merits review by this Court. We respectfully urge the Court to affirm. 5 ISSUES PRESENTED 1(a): Did the trial court abuse its discretion when it denied defendant’s motion to strike the medical examiner’s unfavorable opinion testimony on grounds that the evidence did not satisfy Frye test? 1(b): Did the trial court abuse its discretion when it precluded an expert to provide opinion testimony about the quality of witness recall in a case were numerous eyewitnesses observed defendant choke Andrew Reister and there was overwhelming corroborative evidence? 1(c): Did the trial court abuse its discretion when it prohibited defendant to impeach his own witness in violation of CPL §60.35 which defendant now claims is unconstitutional? 2(a): Did the trial court abuse its discretion when it denied defendant’s motion to set aside the verdict after the defense provided a post-trial affidavit attempting to impeach the jury verdict? 2(b): Did the trial court abuse its discretion when it concluded that a deliberating juror’s consoling comments to an alternate juror was not substantial misconduct warranting her disqualification? 3: Did the prosecutor’s comment, made in response to defense counsel’s attempt to testify on behalf of defendant during summations, constitute prosecutorial misconduct? 4: Was the defendant entitled to a jury instruction for intoxication where the only evidence of his intoxication was two notations of “intoxicated” in police paperwork? 6 STATEMENT OF FACTS The only issue at trial was whether defendant intended to kill Andrew Reister. Based on the numerous eyewitness accounts and the forensic evidence, the prosecution argued that defendant intended to kill Andrew Reister when he placed him in a chokehold for three minutes and disregarded the frantic warnings from the bystanders that defendant was killing him. Conversely, defendant argued that Andrew Reister’s death was a tragic accident that resulted from Reister’s own aggressive behavior and his poor health. After listening to the testimony of all of the witnesses throughout the two-month trial, the jury resolved both claims and determined that defendant was guilty of Manslaughter in the First Degree – namely, that defendant intended to cause serious physical injury to Reister when he subjected Reister to a headlock and maintained it even after he rendered Reister unconscious and caused his death. This unanimous verdict was based on the testimony of all the witnesses, both prosecution and defense, expert and lay, and should remain undisturbed. 1. Ladies Night at the Southampton Publick House On August 6, 2008, James Reister, the head of security for the Southampton Publick House, felt sick so he called his older brother, Andrew Reister, and asked him to work his shift (A3294).6 Andrew Reister (“Reister”), age 40 (A3568), was a Suffolk County Corrections Officer (A2738) who had worked part-time at the 7 Publick House since November 2007. Generally, Andrew Reister worked security alone on Saturday evenings but he occasionally filled in for his brother when asked (A3295, A3297, A4773). Andrew Reister weighed approximately 240 pounds and was either 6’2” or 6’3” tall (A3299). The Publick House was a nice and casual bar whose patrons generally consisted of a young crowd of twenty-somethings (A2738, A3032). It did not have a reputation for trouble (A1462, A1636, A2738). August 6, 2008 was a Wednesday night, which was called “Ladies Night” at the Publick House. It was the Publick House’s most popular night and was usually very well attended, especially during the summer (A2736, A4774). That evening, there were four people working security: Andrew Reister, Mike Pacella, Brant Reiner and Eric Wessler (A2732, A4772). Each member of the security team wore a uniform that consisted of a blue collared polo shirt that bore the Publick House’s insignia (A2375, A2739, A2878-79, A3301, A4776-77).7 Although the Publick House had a restaurant area, it was closed off during “Ladies Night” which was held in the main bar room, in the adjoining “tap room,” and on the outside lawn area. That evening, Mike Pacella collected the cover 6 Numbers appearing alone in parentheses refer to the page in defendant’s appendix. 7 The jury viewed the uniform shirt that Andrew Reister was wearing when he was attacked as People’s Exhibit No. 13 (A1271, A6108); “Ales and Lagers” was printed on one sleeve, a large logo which “says Southampton with a big S in the middle. And it says Ales and Lagers” (A1293-94). 8 charge outside at the entrance with Brant Reiner. Eric Wessler, who just started working there that evening, was assigned to the main bar room. Andrew Reister worked the lounge area near the DJ booth in the tap room (A2733-38). Separating the tap room from the main bar room was a partial wall that housed a fireplace (People’s Exhibit No. 49; A887, A6135).8 There were two entrances that connected the rooms, one near the main entrance and one toward the back of the bar (A1219-20, A1249). Once in the tap room, patrons could exit directly through double doors that led out to the main entrance area (A3306-07). There was a DJ booth toward the back of the room and there was a long cushioned bench that attached to the exterior wall of windows that faced the front lawn (A6145, A6146; People’s Exhibit Nos. 57 & 58). There were three low tables surrounded by small round ottomans alongside the bench (A1249-51, A1290-91). The tables were approximately two feet high, thirty-two inches wide and five feet long (A2076-77, A2713-14). A group of friends who worked together at a tennis club in Southampton arrived at approximately midnight. There were approximately ten of them. Included in this group were Merel Beleen, Larisa Bekmetova, Natalya Yeremina and Clayton Almeida (A995, A1045-46, A2044-48, A2304-07, A3030-31, A3034- 8 People’s Exhibit No. 65 was a diagram with exact scale measurements of the tap room (A219- 20, A6152). 9 35, A3037). Sometime between 12:30 and 1:00 a.m., Larisa, Natalya and Merel started to dance on the bench and low rise tables in the tap room (A1182-83, A1306, A2161-64).9 This trial was a unique one in that there existed photographs of the scene immediately before the crime. One of the men that went to the Publick House with defendant, Adam Rothschild, brought a camera and took pictures of defendant and his friends as they danced on the tables (A4836-38, A6211; People’s Exhibit No. 96). People’s Exhibit No. 97 was a group shot of the men (A6212). People’s Exhibit Nos. 98-100 were photographs of one of defendant’s friends, Adam Cargill, dancing on tables with defendant, and Natalya Yeremina dancing on the table behind them (A6213-15). People’s Exhibit No. 52 (A1001, A6138), depicting Merel Beleen and Adam Cargill dancing together with defendant dancing with Natalya Yeremina on another table, was the last picture taken at approximately 1:07 a.m. Generally, dancing on the furniture was not permitted but sometimes the staff would “let it slide” (A2883). Earlier that evening, some other people danced on the tables as well. They were asked to get down and they complied without incident (A2888). The room was crowded and people danced on the floor, the 9 People’s Exhibit Nos. 55 & 56 were photographs depicting Larisa Bekmetova dancing on one of the tables with Merel Beleen (A1001, A6141, A6142). 10 bench and the tables (A2308, A2336). Larisa Bekmetova danced on a table and a group of men gathered to watch her dance (A2098). When Larisa, who was not drinking that night (A2045), stopped dancing and stepped off the table, defendant approached her and asked if she wanted to dance. Larisa demurred but defendant insisted (A2052). “I had no choice,” she recalled, “It was a bench behind me and tables around me. So just I decided for myself the easiest way to get away from this guy just was to dance for couple of minutes and leave” (A2053). They stopped dancing when defendant became rude. “While I was dancing the guy was rude to me.” She recalled, “[defendant] asked me to turn around and dance – it was a guy of middle age sitting behind on the bench10 and he told me to dance into his face. I told him of course, I will not do that” (A2053, A2099). When she refused, defendant stopped and “[h]e seemed a little bit irritated. Raised his voice a little bit. Told me, ‘what I’m not good enough for you?’ Because I felt that he put me in an uncomfortable situation, I was a little bit scared, so I told him no of course you’re good. So he actually then let me go” (A2055, A2104). When she returned to the tap room a few minutes later, she noticed that two of her friends were dancing with two guys. Merel Beleen was dancing on the first table (the table closest to the main entrance) with another man, later identified as 10 People’s Exhibit No. 56 depicted the seated middle aged man that defendant ordered Larisa to dance in front of (A1001, A2054, A6142). 11 Adam Cargill (A2099). Natalya Yeremina was dancing on the second table with defendant (A2056).11 Approximately a minute later, Andrew Reister entered the room. He stopped at the first table (A2110) and Merel immediately knew Reister was a bouncer. He was wearing the same shirt as the other staff. Reister simply stated, “You guys need to get off the tables.” Merel Beleen and Adam Cargill immediately complied without incident (A997, A1001-05, A1059). Clayton Almeida, who was sitting on the bench between the two tables, witnessed the interaction between Reister and the couple dancing on the first table. He recalled that Reister “just came politely and just asked please, you’re not supposed to be dancing on the table to please step down” and Merel and Adam Cargill immediately complied (A3340-41). 2. Andrew Reister encounters defendant, who is confrontational and belligerent Contrary to the defense, Andrew Reister did not violently and aggressively attack defendant without provocation. Instead, the trial evidence revealed that after several verbal requests for defendant to get off the table, Andrew Reister attempted 11 In People’s Exhibit Nos. 52 & 53, Larisa Bekmetova identified defendant and Natalya dancing on the second table (A1001, A2056-57, A6139-40). 12 to either push or grab defendant off the table and both men fell towards the bench.12 Clayton Almeida witnessed Andrew Reister’s unsuccessful attempt to get defendant off the table. Almeida was already aware of defendant because defendant had already had an encounter with Larisa. Earlier that night, Almeida watched defendant stare at Larisa while she was dancing on the table and, at one point, defendant grabbed Larisa by the arm to pull her off the table. She evaded his advances by yanking her arm away from defendant (A3042-44, A3139-45). When Andrew Reister initially approached defendant at the second table, he politely asked him to “please get off the table, you’re not supposed to be dancing on the table (A3042).” But, unlike Adam Cargill and Merel Beleen, defendant refused to comply. Defendant merely shrugged his shoulders. Reister repeated his request but defendant continued to ignore Andrew Reister and kept dancing (A3047). Steven Goucher13, who was within a couple feet of defendant, witnessed the interaction as well. When Reister asked defendant to “please, you know, get off 12 It was not uncommon for the patrons to get on the furniture to dance. Most of the time, they were asked by security to get off the table and they complied. According to James Reister, if the patron did not comply, it was normal practice to “guide them down or bring them down” off the table (A3034). Brant Reiner testified that “I would ask them to get off the table. And if they would have issues with that, then we would ask them again and guide them down the table just grabbing them, holding them as they get down off the table. And the situation either resolved itself or they’re asked to leave” (A4325-26). 13 People’s Exhibit No. 52 is a photograph that shows where Goucher was sitting and also depicts defendant dancing on the table directly adjacent to Goucher (A1001, A1306-08, A6138). 13 the table, you’re not supposed to be on the table dancing,” defendant asked Reister whether he worked there. When Reister responded yes and asked him to get off the table again, defendant “said fuck you to the bouncer” (A1306, A1312). He recalled that although Reister appeared calm and polite, defendant was “nasty.” Sean Muthig, another eyewitness, recalled that defendant appeared angry and his face “tightened up” when he refused to comply with Reister’s request (A2167-70, A2228). Natalya Yeremina, the girl dancing on the table with defendant, did not observe much of Reister’s interaction with defendant but she recalled that she heard defendant ask Andrew Reister whether he worked there and that Reister responded “yes” (A2315-17). What happened next was hotly contested during the trial. Against the tide of the overwhelming trial evidence, the defense attempted to argue that Reister violently and aggressively attacked defendant. Steven Goucher (seated on the bench just a few feet away) recalled, “[r]ight after [defendant] said fuck you to the bouncer, the bouncer put one foot up on the table and he put his two hands out and he pushed the guy who was dancing on the table” (A1313-14). Reister “didn’t use too much force,” instead he just “pushed him to get off the table since he was refusing to get off” (A1314). Larisa Bekmetova, who did not hear the exchange between defendant and Reister, did see them facing each other. First, Andrew Reister said something to 14 defendant. Reister waited for several seconds but when defendant did not respond, Reister pulled him by the shirt. Both men fell towards the bench (A2059-62, A2064, A2110-13, A2115-16). Similarly, Natalya Yeremina saw Reister push defendant and they both fell down (A2318). Clayton Almeida, who was perhaps best situated to observe the encounter because he was seated two feet away, observed Reister ask defendant “several times” to get off the table. When defendant did not comply, Reister attempted to pull defendant off the table by grabbing him around the waist. Defendant, however, “lost his footing” and stepped back into the space between the table and the bench. Defendant fell and took Andrew Reister down with him (A3047). Both men then stood up and faced each other. Defendant then “threw a punch” at Andrew Reister. It was a strong punch and Reister shielded his face to protect himself. Defendant then lunged forward and grabbed Reister with both arms (A3049-50). According to Merel Beleen, defendant “got behind the bouncer,” “grabbed his neck,” and “started choking him” (A1010). Both of defendant’s arms were around Reister’s neck with two fists clasped together (A1004-05, A1009-15). Reister attempted, “with a lot of force,” to pry defendant’s arms away but did not succeed (A1017). Steven Goucher and Sean Muthig likewise testified that Reister 15 unsuccessfully attempted to dislodge defendant’s hold around Reister’s neck (A1316-19, A1327-28). The noise caused by defendant and Reister as they fell to the bench attracted several more witnesses. John Cato recalled that he was near the partial wall when he heard a “ruckus” of glass breaking and girls screaming. He went into the tap room and observed defendant “choking a man which I perceived to be a bouncer” (A1142, A1146). Defendant had a “lock around [Reister’s] neck” (A1150, A1154) in a chokehold and he was choking Reister so violently that both of defendant’s feet were off the ground (A1155, A1192-93). Another patron, Kyle Baugher, entered the tap room after he heard a “commotion, loud noise [and] [p]eople yelling with raised voices.” Kyle Baugher also observed that the headlock administered by defendant was so intense that both of defendant’s feet were off the ground as he hung to Reister’s neck. To Baugher, it “looked like he [defendant] was almost getting a piggyback ride.”14 Baugher also immediately recognized Reister as “security” (A1462-63). This standing chokehold lasted for at least thirty seconds until Andrew Reister lost consciousness. Merel Beleen estimated this time in which she observed Reister attempting to pry defendant off of him until they fell on the 14 Notably, John Cato disagreed with this characterization of defendant’s grip as a “piggyback” and testified that it was “less of a piggy back, more of him choking and then the bouncer staggering and then the fall” (A1192). 16 ground as 45 seconds (A1027, A1030, A1066, A1119). Once unconscious, Reister’s hands became “completely limp” and hung at the side of his body. Nevertheless, defendant maintained the chokehold (A1016-17, A3052). John Cato witnessed defendant choking Reister for “30 seconds to a minute” before they fell to the floor (A1154). Reister appeared to first stagger toward the double doors but then “fell flat on his face” (A1154-55). As Reister lost consciousness and fell to the floor, defendant “just road [sic] him down…He was still choking the victim. He was still on him and as he went down [defendant] didn’t let go” (A1156). Kyle Baugher, who walked in to see defendant hanging on to Reister’s neck in a “piggyback” position, estimated that it was “approximately 30 seconds” until both men fell to the floor. When Reister fell, he “wasn’t doing anything. His hands were at his side. He wasn’t fighting back, wasn’t grabbing at his neck to try and break the grip. His hands were just at his side” and defendant maintained “his grip” the “entire time” (A1467-68). Notably, Reister “didn’t do anything to break his fall. His hands were still down by his waist.” Andrew Reister stood helpless and defendant “still had that grip placed around [Reister’s] neck” (A1469). He “[d]idn’t release it from the time they were standing up to the time they went down to the floor” (A1471). Sean Muthig testified that defendant choked Andrew Reister in a standing position for twenty-five to thirty seconds until Andrew Reister was no longer moving (A2176-77). 17 3. Defendant readjusts and maintains the chokehold Although Andrew Reister was unconscious and laying facedown, lifeless on the ground, defendant maintained the hold around his neck. Several witnesses observed defendant nevertheless readjust his grip to further secure this chokehold. Clayton Almeida witnessed defendant maneuver around Reister and place him in what appeared to be a “jujitsu chokehold” (A3053-54, A3203-05). Sean Muthig described the readjusting as a “wrestling style move” (A2173-75). Similarly, Cato testified that defendant “readjusted his hips to the side” so that he was “almost perpendicular” to Reister (A1156-57). Throughout the adjustment, defendant maintained a “constant almost like wrench on the victim” while Reister “wasn’t moving” and still “limp” (A1158). A circle of people formed around defendant and Reister (A1423-24). They started to scream and yell, “stop it, you’re choking him, you’re choking him, let go” and “Stop. Let him go. You’re hurting him” (A1197, A1330). Defendant maintained the hold and was “still wrapped around [Reister’s] neck with that grip.” Reister did not fight back, he was “just incapacitated” (A1471, A1515). Kyle Baugher moved closer to defendant and started “yelling at him to stop, get off him, let him go, he’s out, but got no response” (A1535). John Cato could only endure watching defendant choke a helpless Andrew Reister for thirty seconds before he felt compelled to intervene. He too started 18 yelling “you, get off him” (A1161). When defendant ignored him, he approached within two feet away of defendant and screamed, “Dude, you’re fucking killing him” (A1161-62, A1172-73). Still defendant held on. Cato then “tapped” defendant on the head with a “closed fist” with “easy, medium strength” (A1163). At trial, the defense attempted to portray defendant as frozen in panic, but the trial evidence did not support this theory. Instead it was clear that defendant was very much aware of his actions, but singularly focused on one thing – choking Andrew Reister. After Cato struck defendant, defendant reacted by looking back at Cato. Alarmed, Cato retreated because “he didn’t know if this guy was going to come after me next” (A1163, A1197). When Cato retreated, defendant returned his focus to Reister. By this point, defendant had been choking Reister, who was unconscious, for at least one to two minutes. Cato left the tap room to find help (A1164, A1198). Sean Muthig recalled that “[t]here was a lot of screaming. People were yelling let him go, you’re hurting him. There was a lot of commotion” but defendant did not release the chokehold” (A2178). After watching defendant choke Reister for more than a minute, Muthig also attempted to find help and went in search of a bouncer (A2178-79, A2243-44). Austin Everhart, a waiter at the Publick House, was off-duty and standing outside in front of the tap room with a group of friends when he saw Andrew 19 Reister through the windows. Something about Andrew Reister’s body language alerted Everhart that something was wrong inside (A2375, A2378-82). After a minute, he decided to alert Mike Pacella, the manager of the Publick House, that there may be a fight inside the tap room (A2783-84, A2468-69). Afterwards, Austin went into the tap room and saw defendant “crouching, kneeling down close to the ground level near Andy.” Defendant was leaning over Reister with his right arm wrapped around Reister’s neck (A2389). Once Austin Everhart realized that defendant was not letting go but actually maintaining the chokehold, Everhart jumped to the ground and “immediately started to pull at [defendant’s] shoulders and neck area” in an effort to pry him off Reister (A2390). He recalled, “my reaction was fast in the sense that I realized the man [Reister] was unconscious, getting choked still” (A2475-77). Everhart started to scream “get off, get off…get the F off,” (A2396, A2505) but defendant maintained his grip. Everhart intervened: “I basically was pulling back with everything I had to rip his arm off. I was grabbing at his arm, his shoulder, his neck and anything, his upper body. I was just ripping and pulling back, you know, with all the strength that I could try to pull him off” (A2390, A2481-82). Defendant resisted Everhart’s rescue attempts and maintained the chokehold. As Austin Everhart tugged at defendant’s arms, defendant resisted by pulling back and flexing forward while still maintaining the death grip (A2390-91). Defendant 20 was relentless and Everhart punched defendant in the left side. Defendant turned toward Everhart and looked directly at him (A2393, A2485). Everhart’s efforts were waylaid when someone suddenly and “completely blindsided” Everhart by pushing him in the chest. He fell off defendant. Everhart looked at his assailant and screamed, “get him off, get him the F off.” The man responded, “I’m trying, I’m trying to get him off” but besides blindsiding Austin, the man did nothing to get defendant off Andrew Reister. The man who blindsided Austin was probably defendant’s friend, Adam Cargill.15 Austin got back up and grabbed defendant by the legs (A2395-97, A2401, A2489-92). “I was basically pulling him off to hopefully save Andy’s life” (A2403) but “[r]ight away when I pulled back and leaned there was still resistance…[defendant] was fighting it because he was still engaged in the choke and hanging on” (A2403). Austin described it as a “tug of war.” Each time Austin leaned back in order to pull defendant off of Reister, defendant resisted by pulling the other way to maintain his chokehold (A2497-99). 15 Mike Pacella recognized Adam Cargill in a photograph (Defendant’s Exhibit K) and recalled that, “During trying to get Andrew free of the chokehold, he kept saying I’ll try, I’ll get him off, I’ll get him off. And I never saw him do anything except I heard him say maybe a couple of times say let go of him, let go of him. And there was no response from the choker” (A2760). Defendant did not even answer his own friend. He just kept choking and choking and choking (A2761). The friend was wearing a baseball cap (A2761) and, as they were leaving, the friend said, “let’s get outta here” (A2763). 21 When Mike Pacella, the manager of the Publick House, learned that there was a possible fight in the tap room, he immediately responded. Inside the tap room, he saw that “one person was choking another person. Had them in a headlock” (A2741-42, A2746, A2797-98, A2802). Initially, he did not recognize that Reister was the victim but when Megan Flynn, a waitress at the Publick House, screamed “that’s Andy on the bottom, that’s Andrew on the bottom,” Mike Pacella jumped in and grabbed defendant by the shoulders in order to pull him off. Again, defendant responded by tightening his grip so that as Mike Pacella attempted to pry defendant off of Reister, he inadvertently resulted in lifting Reister’s body off the floor (A2752, A2803-06). Mike Pacella, six feet and two inches tall and weighing 300 pounds, recalled that he pulled at defendant with all of his strength but defendant simply refused to release Reister’s neck (A2753-54). In pure desperation, Pacella placed his fingers into defendant’s mouth and tried to wrench defendant off Reister by using a fish hook type maneuver. Pacella’s efforts were to no avail, defendant “continued holding on to Andrew’s neck and was choking the life out of him” (A2754-58, A2825). When defendant finally did let go, he did so suddenly and without any apparent reason. Beleen recalled that the attack stopped when defendant “suddenly took off. He just let go and took off and started running” (A1072). Defendant ran 22 out the nearby double doors (A1031). According to Kyle Baugher, defendant “[j]ust released the grip, stood up on his own two feet and ran toward that door to get out of there” (A1478). Sean Muthig stated, “the patron just let go and walked out of that room quickly” (A2186). Clayton Almeida recalled that defendant “just stood up and ran away to those glass doors.” Mike Pacella similarly recalled that defendant suddenly just “let go, stood up [and] him and his friends ran out the side doors” (A2405, A2758-59). Someone, probably Adam Cargill, yelled, “let’s go, let’s get outta here” (A1334, A1402-03, A3072-73). 4. Witnesses recall that defendant choked Reister, who was unconscious on the floor, for two to three minutes From the moment that Andrew Reister fell to the ground, unconscious and incapacitated by defendant’s initial headlock, to when John Cato attempted to intervene, Cato estimated it was one or two minutes (A1163). Then he tapped defendant on the head, but he left the room to find help after defendant looked at him and made Cato nervous. By the time Cato returned, defendant had fled. Cato estimated that it was “a minute and half” or a “minute or so” from when he stepped away from defendant to when he returned to the room (A1165-66, A1173). Thus, the total time between when Reister hit the floor to when defendant fled, according to Cato, was two to three and one-half minutes. According to Steven Goucher, “about a minute” passed from when defendant and Reister fell to the floor to when Mike Pacella intervened (A1332). 23 The attack lasted another “two minutes or so.” Thus, the total time on the floor, by Goucher’s account, was approximately three minutes. During the entire time, “people were yelling the same thing as before. Stop it. You’re choking him. You’re choking him. You’re killing him. You’re killing him” (A1334). They were “yelling as loud as they could” (A1334). Kyle Baugher estimated that defendant choked Reister in a standing position for approximately thirty seconds. After defendant rode down an unconscious Andrew Reister, another minute passed before Baugher intervened. Then, another “minute had passed until” someone finally approached defendant and grabbed him by “his shoulders, his right arm, his shoulder area to try and pull [defendant] off but to no avail” (A1472-75, A1528). Throughout this time, Baugher was yelling at defendant to stop and he heard others screaming similarly” (A1474). It was another minute “from the time within when I intervened to the time where this guy got up. So two and a half minutes start to finish” (A1477-78). Sean Muthig watched defendant choke a helpless Andrew Reister for a minute until he left to find help (A2177-78, A2243-44). When he returned, Mike Pacella was attempting to pull defendant off Andrew Reister (A2179-81). Muthig estimated the time from when he returned to the tap room to when defendant fled as “about a minute” (A2243). Muthig testified that from the time he saw defendant choking Andrew Reister until defendant fled as about three minutes. 24 Clayton Almeida recalled that it was at least three minutes from when the bouncer went down to the ground to when defendant fled (A3073). Throughout the entire time, Andrew Reister was motionless and defendant never released the chokehold (A3074). Merel Beleen estimated that Reister was on the ground being choked by defendant for approximately two minutes before defendant fled (A1028). Larisa Bekmetova stated that although she did not see the altercation, she recalled it was three to four minutes from when she saw Reister pull defendant off the table to when the bouncers came in and shouted to turn on the lights and turn down the music (A2067, A2122). Paul Fallo, the deejay, recalled that at approximately 1:00 a.m., he left the tap room for a break. As he was leaving, he saw Andrew Reister approaching Merel Beleen and Adam Cargill at the first table (A2889, A2958). Prior to leaving, he played a song which he knew to be six minutes and thirty seconds long. Fallo went outside after a minute of the song playing (A2890-91). Fallo was outside for approximately three minutes when Mike Pacella went inside. After another minute, Fallo headed toward the tap room after a minute to investigate. Defendant walked past him as Fallo was entering (A2898-99). There was thirty seconds left on the song when Mike Pacella told him to turn off the music (A2900). 25 5. Defendant flees the scene Sean Muthig and Austin Everhart called 911 immediately after defendant ran out of the tap room (People’s Exhibit No. 67; A2188, A2191, A6152). The calls occurred at 1:12 a.m. and 1:13 a.m. on August 7, 2008 (A1564, A1566). Sean Muthig followed defendant and called 911 as he watched defendant pace in front of the taxis (A2186). Austin Everhart also followed defendant and informed 911 that defendant left in a Sam’s Taxi (A2406-07). At approximately 1:00 a.m., Sami Abbes, the owner of Sam’s Taxi, was parked across the street from the Publick House when four men approached his car. One of the men came straight to his windows and provided him with an address. Defendant, who was breathing heavily, entered the cab and sat directly behind Abbes (A1966-74, A2002). Defendant appeared like he was “in a hurry” and “nervous.” He instructed Abbes to “drive fast” and “leave the Publick House.” Defendant’s friends left him and defendant told Abbes to “just drive, let’s go” in a “hurried” and “nervous” voice (A1975). While they were driving, Abbes received a phone call from another driver and Abbes started to slow the car down. Defendant immediately commanded Abbes to “start rushing…keep driving” and to “drive fast” (A1978). Shortly thereafter, Abbes saw a police car behind him with its lights on. Abbes stated, “oh crap, the cops” and pulled over. Once stopped, 26 defendant ordered Abbes to not to say anything and to be quiet (A1979-80, A2008). At 1:14 a.m., Police Officer John Rodecker received a dispatch of a “fight at Southampton Publick House where a bouncer was choked unconscious” and that the “perpetrator had fled in a Sam’s Taxi.” At 1:15 a.m., Rodecker stopped Abbes’ taxi less than one mile away from the Publick House (A1606-08, A1610-11). Officer Rodecker approached the vehicle and observed defendant who was wearing “a ripped T-shirt, dirty, light colored cargo shorts and no shoes.” Defendant was also “breathing heavy” (A1617-18, A1629). The police officer approached the car and went directly to the passenger door. He slid open the minivan door and asked them where they were coming from, Abbes blurted out “Publick House.” Notably, defendant’s demeanor completely changed (A1982-84). When he first entered the taxi, defendant was hurried and nervous. But defendant’s demeanor transformed when he interacted with the police officer. Suddenly, defendant “tried to act cool, normal” and responded with a smile and acted jovial (A1984, A2014-15). Defendant appeared to be “generally in a good mood” and his demeanor was “calm and seemed like he was out having a good time” (A1618). When defendant complied with Officer Rodecker’s request for identification, Rodecker observed a fresh blood stain on defendant’s left wrist (A1629-31, A1831-33). Officer 27 Rodecker asked defendant what happened to his shirt and defendant responded that he was “dragged out of the bar [and] thrown into a cab” (A1632). Rodecker then asked him why his shorts were dirty and defendant cavalierly responded “you know how it is in the Publick House, you get dirty there” (A1633). When asked about the lack of his shoes, defendant responded that his flip-flops came off when he was dragged out of the bar (A1632-33, A1815-16). Officer Rodecker stepped away from defendant and radioed a request for a description of the Publick House suspect. No one from the scene responded. When Rodecker asked defendant about his appearance, defendant blurted out “self- defense” (A1637). Rodecker concluded that defendant was connected to the Publick House crime and took defendant into custody at 1:16 a.m. (A1635-41, A1776-80, A1810-11). Officer Rodecker recalled defendant’s demeanor when he was initially stopped as “conversational and casual” but after Rodecker contacted the scene, defendant’s demeanor “changed from being happy to I need to change my story now” (A1774-75). Because the scene at the Publick House was still chaotic, Officer Rodecker did not return defendant there for a show-up (A728-31, A1494). Instead, he transported defendant to the Southampton Village Police Headquarters at 1:46 a.m. (A1641-42, A1643-45). 28 6. Defendant’s arrest Defendant’s conduct while detained at the Southampton Village Police Department revealed two things. First, defendant was not intoxicated.16 Second, his behavior was inconsistent with a person who had just been brutally attacked, as alleged by the defense at trial. Except for a small red scratch on defendant’s face, defendant suffered no injuries (People’s Exhibit No. 83; A1719, A2579, A2581, A6197). Moreover, throughout his entire detention, defendant’s demeanor was casual, conversational and defendant was “joking around” and even laughing at points (A1658-62). At trial, the jury viewed firsthand evidence of defendant’s demeanor when the prosecution entered into evidence a videotape from surveillance cameras that recorded the entire duration of defendant’s custody (People’s Exhibit No. 15; A1563, A6108, A1673).17 Defendant, who had allegedly been the victim of an unprovoked and violent attack by a large unknown assailant, was calm and conversational. He made comments about sports (A1658), fishing (A1659), and inquired about the claddagh rings worn by the detectives (A1656). When asked about some of his fingers (which were amputated at the tips), defendant fabricated a story of how he had blown them up during a training 16 The factual background relating to defendant’s claim of intoxication is provided in detail in Point Four. 17 Copies of the videotape have been provided to the Court and are submitted with this brief. 29 accident in the army. He joked, however, that “[a]t least it didn’t screw up my golf game” (A1659-60, A1703-04, A1790-94). At approximately 3:10 a.m., defendant asked Rodecker how “much longer is this gonna take, I don’t even know what I’m still doing here, the last thing I remember – that I was dancing on a table and then I was dragged out of the bar and thrown into a cab” (A1672). He told Officer Rodecker that when he was dancing on the tables, “the girls were loving me” (A1672). At 6:45 a.m., Detective Lamison advised defendant that he was under arrest for Assault in the First Degree (A1690). Notably, it was not until 7:00 a.m. that defendant reiterated his earlier claim that “it was self-defense” (A1690-92). Detective Lamison interrupted defendant and advised him not to speak until he had been provided his constitutional rights (A1706, A1859-60). Once advised of his rights, defendant invoked his right to counsel and there was no further questioning of defendant (A1937-39). 7. Andrew Reister never regains consciousness After defendant fled the Publick House, several people rushed to Andrew Reister’s aid (A1034, A2764). Reister was unconscious, lying face down. His arms were “twitching a little bit” (A1035) but it did not appear that he was breathing (A1479). John Cato, who was trained in first aid, rushed to his side and attempted to wake him but there was no response. There was no pulse detectible 30 on Reister’s neck. When someone turned Reister over, Cato was “taken aback.” Reister was “very limp with the right eye looking left and the left eye looking right. His mouth was very bloody” (A1166-67). Andrew Reister’s entire face was “purple, discolored” and his eyes, which were open, were bloodshot (A1479-80). Fallo recalled that Andrew Reister’s face was “very blue. His lips were blue” (A2911). Megan Flynn, the waitress who had alerted Mike Pacella about the fight, immediately started CPR after she could not detect Reister’s pulse (A2764). Two other patrons, one a member of the Southampton Town Ambulance Department and the other, an off-duty police officer, joined Megan Flynn’s efforts. By the time Keith Phillips, an emergency medical technician, arrived, Andrew Reister had a weak pulse in the form of a weak left carotid artery pulse (A3405). Upon arrival, someone advised Keith Phillips that Reister had no pulse for approximately three to five minutes but that it returned, albeit weakly, after two cycles of CPR (A3405, A3440-41). The pulse lasted for approximately two minutes (A3485), but then it was lost – Andrew Reister had no pulse, no respiration, no blood pressure – for the next eighteen minutes (A3441-42). When they arrived at Southampton Hospital, Reister was resuscitated by medical intervention – his pulse returned but by that time his heart had not pumped blood into his brain for more than twenty minutes (A3480-82). Two days later, on 31 August 9, 2008, at 11:00 a.m., Andrew Reister was formally declared brain dead (A3562). 8. The autopsy Deputy Medical Examiner Dr. James Wilson performed the autopsy on August 11, 2008. Because Andrew Reister was scheduled for organ harvesting, Wilson examined Andrew Reister before he was formally declared brain dead so that forensic evidence could be properly preserved (A3564-65). Based on the nature of the crime, Dr. Wilson prohibited the harvesting of any organ or tissue involving the eyes or the heart (A3565). According to Dr. Wilson’s measurements at autopsy, Andrew Reister was approximately six feet one inch tall and weighed 201 pounds. These measurements, however, were not accurate because defendant had several organs harvested and bones removed from his legs (A3564-65). Dr. Wilson testified that Reister appeared to be “average to possible overweight body type” (A3568). But he disagreed with defendant’s claims, based on hospital paperwork, that defendant weighed 280 pounds since it was unlikely that the “post mortem surgical procedures” could account for a seventy pound weight loss (A3569-70). Andrew Reister’s external injuries included bruising to the bridge of his nose (A3575) and forehead (A3585). Another bruise appeared on his chest and, upon internal examination, Dr. Wilson discovered that the tissue underneath “had 32 been impacted hard enough to cause a small hemorrhage in the muscle itself” (People’s Exhibit No. 119; A3586-87, A3589, A3591, A3622, A6234). There was also a bruise on his right thigh that appeared “almost linear” (People’s Exhibit No. 120; A3589, A3594, A6234). Notably, there was no external evidence of trauma on Reister’s neck, from the lower jaw to upper chest (A3565). The lack of exterior injuries, however, was significant in relation to the amount of internal injury Andrew Reister sustained in the neck area (A3565). Upon internal examination of Reister’s neck area, Dr. Wilson discovered that there were multiple hemorrhages on the left side of the neck and two areas of hemorrhage on the right side of the neck. The hemorrhaging was more severe on the left side of the neck as opposed to the right side of the neck (A3627). On the right side, there was bruising, tearing and hemorrhaging of the sternomastoid muscle close to the region where the carotid artery bifurcates (A3624, A3641). On the left side, there were multiple hemorrhages to the deep tissues located near the larynx and Adam’s apple. Also, there were two fractures in the neck – one to the thyroid cartilage horn and the other to the hyoid bone. The tissues surrounding these fractures revealed hemorrhaging as well (A3624-26). There was some hemorrhaging in tissue located at the front of Reister’s neck (A3623). Dr. Wilson opined that these injuries were consistent with witness descriptions of defendant’s chokehold around Andrew Reister’s neck. The 33 hemorrhage damage on the right side was consistent with the pressure caused by the defendant’s bicep, while the broken bones and hemorrhaging on the left side was the consistent with greater pressure from the hard bony part of defendant’s forearm. Also, the deep bruising in the middle of Reister’s upper chest was consistent with where defendant’s elbow would have rested. There was less hemorrhaging to the front of Reister’s neck because it rested in the crook of defendant’s elbow (A3657-62). Dr. Wilson noted that the force necessary to fracture the hyoid bone and the thyroid cartilage would be “very severe, very extreme amount of force” (A3662). Dr. Wilson also noted the presence of florid and prominent petechiae on the outer and inner skin of Reister’s lower and upper eyelids, as well as the peri-orbital area (A3561). The facts relating to the petechiae and “purpling” are provided in more detail in Point One. Dr. Wilson testified that Reister’s injuries were inconsistent with defendant’s claim that they were caused by the fall to the floor. First, there was the direct injury to the front of Andrew Reister’s face, specifically his forehead and the bridge of his nose, that supported the witnesses’ accounts that Andrew Reister fell on his face. Second, in order to sustain the type of hemorrhaging and bone fracturing on both sides of the neck, the pressure must have originated from both the left and right side – not from a fall face-first on the ground (A3665-69). 34 Based on the nature of the injuries and the necrotic appearance of Andrew Reister’s brain tissue, Dr. Wilson opined that the cause of Andrew Reister’s death was brain death caused by neck compression (A3651). According to Dr. Wilson, the neck compression was focused on the area where the carotid artery bifurcates. Within that location, there is a “very sensitive pressure sensor” that sends a message to the brain to slow the heart. The sustained compression caused by defendant’s chokehold caused Andrew Reister’s heart to stop beating. Also, the pressure on the carotid artery decreased the flow of blood to the brain (A3651-54). Dr. Wilson later described this type of hold as a “carotid sleeper hold” (A3847, A3850) and acknowledged that when such a hold is implemented, a heart could stop in as little as “10-15 seconds of stimulation” (A3848). But Dr. Wilson opined that ordinarily the heart would restart “if the pressure was released” (A3991). 9. Andrew Reister did not have a heart condition that caused his death As early as opening statements, the defense argued that this type of hold “is dangerous and can lead to death. Especially in a person as you’ll hear like Andrew Reister” (A706). Essentially, throughout the trial, the defense claimed that Reister died as a result of a fatal arrhythmia brought on by the “pressure” caused by defendant’s restraint hold. According to the defense, this fatal arrhythmia was sudden and unexpected and caused by Reister’s preexisting medical conditions – obesity, heart disease, sleep apnea, high blood pressure and high cholesterol. In 35 order to refute defendant’s speculative claims, the prosecution called Dr. Miguel Blanco – Andrew Reister’s cardiologist. During his autopsy, Dr. Wilson measured Andrew Reister’s heart and determined that it was “mildly enlarged” and that, in a few locations, Reister’s coronary arteries had some arteriosclerosis (thickening of the walls). But Dr. Wilson made clear that Reister’s heart did not appear as one with significant heart disease. Instead, Reister “had a normal looking heart except for its increase in size and thickness of the wall” (A3699-3702). Andrew Reister’s medical history included a hospitalization in May 2005 after he complained of heart palpitations. Because an EKG revealed that Reister suffered from some irregular heartbeats (premature ventricular contractions), Reister was admitted for observation which was standard practice for someone complaining of these symptoms. He stayed overnight but was released the next day after a stress test revealed that there was no significant problem. Reister was referred to Dr. Blanco for further examination (A4091-92). Based on the results of Andrew Reister’s stress test and echocardiogram, Dr. Blanco determined that that his premature ventricular contractions (PVC’s) were benign. At the time he complained of palpitation, Reister was taking a drug called Claritin-D, which was notoriously known for causing heart palpitations (A4097). Also, just prior to his hospitalization, Reister had engaged in excessive exercise – 36 he dug a seventeen foot trench – “without any problems” (A4110). Additional testing revealed that Reister was able to exercise at a very high level without triggering any extra heartbeats and that although he suffered occasional heart palpitations, they were benign (A4101, 4109). A sonogram of his heart revealed a “normal structural heart” (A4107) and that Reister suffered “[n]o obstructive artery disease” (A4110). As a precaution, Dr. Blanco prescribed a very low dose of Toprol to regulate his slightly elevated blood pressure (A4111-13). Dr. Blanco concluded that based on the numerous tests and treatment, Andrew Reister was not at “high risk” for a cardiac event and he was cleared for “any physical activity that he wanted to engage in” (A4113-14). Indeed, up until Reister’s death, he participated in a “competitive” full court basketball league and was never witnessed to have any type of physical distress (A4297-99). 10. The defense case The defense called two expert witnesses to provide their opinion regarding the cause of Andrew Reister’s death and the results of Dr. Wilson’s autopsy. The first witness, Dr. Daniel Spitz, a forensic pathologist and medical examiner, testified that Andrew Reister had “significant” preexisting medical conditions, specifically his history of premature ventricular contractions, obesity, high blood pressure and sleep apnea, that contributed to his death (A4582-86). According to Dr. Spitz, Reister was already predisposed to sudden cardiac death and his alleged 37 preexisting medical conditions disposed him to “die suddenly and unexpectedly with the mechanism being arrhythmia [stopping] of the heart” (A4603). Dr. Spitz opined that had Reister had a “normal healthy heart,” it would have restarted notwithstanding the administration of the “carotid sinus stimulation” but his “preexisting disease” contributed to Reister’s inability to regain a normal heartbeat (A4633). But ultimately on cross-examination Dr. Spitz acknowledged that when a carotid sleeper hold is not immediately released upon incapacitation of the person, it may cause death (A4701). When asked about the presence of petechiae, Dr. Spitz agreed with Dr. Wilson that it is common place in cases of post-mortem lividity (A4612) but “on occasion there is a death investigation, an autopsy, where I will see petechial and I don’t have a great explanation for it even though I’m quite comfortable with the cause of death being completely unrelated to their presence.” Then Dr. Spitz further speculated, in some cases, petechiae could result from CPR (A4617). He further speculated that the severe trauma suffered by Reister could have resulted after he fell with someone’s arm wrapped around his neck (A4621). Dr. Spitz also provided contrary testimony regarding Dr. Wilson’s opinion about the petechiae and purpling and opined that there was no way to determine the duration of the neck hold based upon these findings (A4626-31). 38 Defendant’s expert, Dr. Kassotis, a specialist in electrocardiology, acknowledged that he was not a pathologist and had never performed an autopsy. Instead, he only reviewed Reister’s medical records, the autopsy report and testimonies of the medical witnesses at trial. Nevertheless, he had no difficulty pinpointing the precise cause of death as fatal arrhythmia with Reister’s heart disease, not defendant’s chokehold, as the contributing factor. His opinion was severely undermined on cross-examination when he confirmed that he did not read the eyewitness testimony and never actually examined Andrew Reister before or after his death (A4949-53, A4959-60, A4961-63, A4970-72). The defense also presented three eyewitnesses: Megan Flynn (A3784), Kira Leader (A4986) and Shamir Cohen (A5042). Megan Flynn, the waitress from the Publick House, was the one who alerted Mike Pacella to the fight and administered CPR to Andrew Reister immediately after defendant fled. Megan Flynn testified as a defense witness during the prosecution’s direct case (A3782-83). Flynn, who was underage (20) at the time of the crime (A3785), recalled that she worked as a waitress until about 11:00 p.m. and that she had been drinking from that time until the crime occurred. When asked about the duration of the event, she estimated that “it could have been a minute or so”18 from the moment she walked into the tap room and observed John Cato trying to pry defendant from Reister until defendant 18 We discuss in further detail the facts regarding defendant’s improper attempt to impeach Megan Flynn in Point One of the Brief. 39 finally let go. When asked about how she estimated her time, Flynn admitted that it may be flawed because “while it was occurring it was just stressful. I was in a panic, I was worried about whoever was on the floor” (A3820). She acknowledged that she had been drinking that night and the effects of alcohol “interfered with [her] judging time” (A3829). Another eyewitness presented by the defense was Kira Leader, age 27 at the trial. She went to the Publick House for dinner and remained there until 1:00 a.m. and drank the entire time. She was in the tap room when she observed men and women dancing at the table (A4992). Leader was sitting on the stools next to the second table when she saw “the bouncer”19 speak to a man dancing on the last table (table three),20 and when the man who was dancing did not respond, the bouncer “grabbed the person dancing” (A4995). Notably, she could not remember how the bouncer got the man off the table (A5016), but she recalled that both men fell to the floor with the bouncer on top (A5018). People started to crowd around and after the “initial fall,” she was unable to see (A5020). She left when she heard one of the bystanders state “He’s not breathing,” and when she left, the two men were still together fighting on the floor (A5022). Throughout the entire encounter, 19 Kira Leader testified that she never learned “officially” that Andrew Reister was a bouncer but that his “presence” made it obvious that he was based on his size and “authoritative demeanor” (A5901). 20 Notably, Kira Leader was the only witness that testified that the event occurred on the third table. All other witnesses recalled that defendant was dancing with Natalya Yeremina on the second banquette table. 40 because she was seated, she never saw what happened once the men hit the floor (A5023). She testified that the period of time from when the men fell to the floor and when she left as no more than 30 seconds (A5016-8, A5021-5). Lastly, she recalled that her friend Shamir Cohen left the room with her at the same time and that they took a cab home (A5027). Shamir Cohen, age 25 at the time of the trial, also testified on defendant’s behalf. Shamir Cohen’s testimony was confusing and contradicted the testimony of every other witness – both prosecution and defense witnesses alike. She arrived at midnight, ordered a drink, but went to the tap room where it was less crowded (A5043-45). Inside, there were at least four people dancing on the tables. A couple was dancing on a table when someone approached them and gestured for them to get down (A5050-52). She immediately recognized that the person was a bouncer, “somebody who appeared to have authority.” Then he approached defendant and gestured for him to get down but he refused to acknowledge Reister’s multiple requests (A5052-53). Cohen claimed that then Reister “kind of just erratically, aggressively…jumped on the table…which caused like – they went tumbling down” (A5054-57). She stated both men fell to the floor and Reister was on top of defendant as they were restraining each other. She did not see what occurred on the floor, but less than a minute later, she saw defendant leave out of the double doors (A5061-62, A5066). And although Kira Leader testified that she 41 left with Shamir Cohen during the altercation and saw nothing afterwards, Shamir Cohen claimed that she witnessed the aftermath. Shamir Cohen also unequivocally testified that she did not leave in a taxicab but was driven home by her friend (A5072). The defense also called Donald Sullivan (A4771), the owner of the Southampton Publick House, who was not present during the attack, and Lead Homicide Detective Richard Higgins (A4789) to question him about the scope of his investigation. 11. The verdict and sentence Ultimately, the jury acquitted defendant of Murder in the Second Degree and convicted him on the lesser-included charge of Manslaughter in the First Degree. He was sentenced in April 2010, by the County Court, Suffolk County (Hinrichs, J.) to a determinate sentence of twenty-two years incarceration with five years post-release supervision. 42 POINT ONE THE TRIAL COURT’S EVIDENTIARY RULINGS WERE CORRECT, NOT AN ABUSE OF DISCRETION AND SHOULD THEREFORE BE AFFIRMED. Defendant claims that three evidentiary rulings of the trial court “unjustly stacked the deck against [defendant] and undermined his defense” (DB, 52). Before we discuss each ruling, we note that in his brief, defendant has advanced that the trial court’s evidentiary rulings are subject to de novo review. Citing People v Borges,21 defendant claims that the trial court allegedly applied the wrong legal standard (DB, 53). Notably, defendant does not elaborate as to which incorrect legal standard that the trial court allegedly applied. As discussed below, the proper standard is whether the trial court’s ruling was an abuse of discretion. 1. Standard of Review It is well settled that a trial court has “wide discretion in making evidentiary rulings and, absent an abuse of discretion, those rulings should not be disturbed on appeal.”22 A decision to admit evidence is “circumscribed by the rules of evidence and the defendant’s right to present a defense.”23 Nevertheless, the defendant’s 21 People v Borges, 69 NY2d 1031 (1987) (In a case involving claim of illegal search and seizure where defendant’s consent to search and/or attenuation existed, the hearing court addressed only the issue of voluntariness and its failure to address attenuation issue [a mixed question of law and fact] became reviewable by the Court as a matter of law). 22 People v Carroll, 95 NY2d 375, 376 (2000); citing People v Aska, 91 NY2d 979, 981(1998). 23 People v Hudy, 73 NY2d 40, 57 (1988), abrogated on other grounds by Carmell v Texas, 529 U.S. 513 (2001). 43 right to present a defense is not absolute – he must adhere to the rules of evidence. All of the complained-of rulings by the trial court were proper and a sound exercise of the court’s discretion; the fact that they were ultimately detrimental to the defense did not constitute reversible error. None of the alleged errors, either individually or cumulatively, denied defendant of his right to a fair trial. 2. The trial court properly denied defendant’s belated application to strike Dr. Wilson’s conclusions a. The relief requested Although defendant acknowledges that the standard remedy for a prejudicial evidentiary error by the trial court is remand for new trial, he moves the Court to dismiss the indictment based upon a treatise, which defendant argues requires this Court to dismiss the indictment. According to defendant, admission of Dr. Wilson’s conclusions constituted reversible error because without the conclusions regarding the duration of the chokehold, there was insufficient evidence to support the verdict (DB, 66).24 CPL §470.20(2) directs an intermediate appellate court to “dismiss the accusatory instrument” upon reversing “a judgment after trial for legal insufficiency of trial evidence.” Likewise, when the Court of Appeals makes a comparable decision, the Court has, in the past, dismissed the indictment.25 But 24 Citing Arthur Karger, The Powers of the New York Court of Appeals, §21:15 (3d Rev 2005). 25 See e.g., People v Reed, 40 NY2d 204 (1976); People v Montanez, 41 NY2d 1144 (1976). 44 this practice is inapplicable here. Notwithstanding Dr. Wilson’s testimony, there was overwhelming proof of defendant’s guilt. At defendant’s sentencing, the trial court noted, “Regarding the events of August 7, 2008, in the Court’s view, there is overwhelming evidence through the testimony of the witnesses to support the verdict of Manslaughter in the First Degree” (A6086-87). According to the trial court, which had the unique opportunity to view the witnesses and assess their credibility, …[i]n the Court’s mind, there is absolutely no doubt that there was a very significant period of time involved here in which the choke hold was in effect. This hold was in effect and withstood the efforts of others to break the hold, and there is absolutely no doubt in this Court’s mind that these actions caused the death of Mr. Reister and were, under all the circumstances here, totally and absolutely unjustified (A6087-8). Also, in the Appellate Division’s summary of facts, the emphasis was on the facts established by the numerous eyewitness accounts of the attack – not on Dr. Wilson’s testimony: During the scuffle that ensued, the defendant got behind the victim and placed him in a hold which witnesses described as a chokehold or headlock. The defendant maintained this hold on the victim even after they fell to the ground despite efforts by bystanders to break his hold and pleas from people in the crowd that he should stop. When he was finally released, the victim fell flat on his face and did not appear to be moving.26 26 People v Oddone, 89 AD3d at 868. 45 The relief requested – that the Court dismiss defendant’s indictment – should be denied because the Appellate Division found as a matter of fact there is sufficient evidence of defendant’s guilt without Dr. Wilson’s testimony; and this factual determination is not reviewable in this Court. And, as previously determined by the Appellate Division, any claim regarding justification is unpreserved for appellate review.27 Thus, there is no merit to defendant’s argument that “[w]ithout Dr. Wilson’s testimony, there was no evidence establishing that Reister died from the application of unjustified force” (DB, 64). Likewise, the Court should also deny defendant’s application for a new trial based on the trial court’s allegedly prejudicial evidentiary ruling with respect to Dr. Wilson because, as discussed below, the claim is not properly preserved and also without merit. b. Procedural background On appeal, defendant argues that the trial court erred when it denied the defense’s motion to strike the testimony of Dr. James Wilson, the medical examiner, based on grounds that it was inadmissible under Frye v United States. The Appellate Division rejected this claim and held: The County Court properly denied, without a hearing, the defendant’s application to strike the testimony of the People’s forensic pathologist regarding the presence of small hemorrhages called petechiae on 27 People v Oddone, 89 AD2d at 869. Citing People v Hawkins, 11 NY3d 484, 492 (2008); People v Gray, 86 NY2d 10, 19 (1995). 46 the outside surface of the victim’s eyelids and the fact that the victim’s face turned purple immediately after the incident. New York courts evaluate the admissibility of expert testimony under the Frye test (citations omitted) pursuant to which such testimony must be based on principles that are generally accepted in the relevant scientific community (citations omitted). However, it is well settled that there is no basis for a Frye hearing where the challenge is to the reliability of the expert’s conclusions. Frye is only implicated where a question as to whether the expert’s methodologies or deductions are based upon principles that are sufficiently established to have gained acceptance as reliable (citations omitted). Here, the County Court properly determined that Frye was inapplicable to the expert’s testimony. The expert testified and made conclusions based on his personal observations and experiences as a forensic pathologist for many years. The defendant’s factual disagreement with the expert’s theory regarding the cause of the petechiae on the outside surface of the victim’s eyelids and the fact that his face turned purple immediately after the incident did not require a Frye hearing (citations omitted).28 A review of the record reveals that both lower courts properly denied defendant’s attempt to strike portions of Dr. Wilson’s testimony. The judgment of conviction should therefore be affirmed. 28 People v Oddone, 89 AD3d 869-70. Citing Frye v United States, 293 F 1013 (1923); People v Wernick, 89 NY2d 111 (1996); Parker v Mobil Oil Corp., 7 NY3d 434 (2006); People v LeGrand, 8 NY3d 449 (2007); People v Wesley, 83 NY2d 417 (1994); Ellis v Eng, 70 AD3d 887 (2d Dept 2010); Lipschitz v Stein, 65 AD3d 573 (2d Dept 2009); Alston v Sunharbor Manor, LLC, 48 AD3d 600 (2d Dept 2008); Nonnon v City of New York, 32 AD3d 91 (1st Dept 2006), aff’d, 9 NY3d 825 (2007). 47 c. Factual background Dr. James Wilson, board certified in the fields of clinical, anatomical and forensic pathology, performed the autopsy of Andrew Reister. During his thirty- year career, he had performed more than four thousand autopsies and had been a Deputy Medical Examiner at the Suffolk County Medical Examiner’s Office for thirteen years (A3551-59). Dr. Wilson observed Andrew Reister on August 9, 2008, two days before he was officially pronounced dead. On August 11th, Dr. Wilson performed the autopsy and determined that the cause of Andrew Reister’s death was brain death caused by neck compression (A3651). Drawing on the same basis of knowledge and qualifications that led him to conclude the cause of Andrew Reister’s death, Dr. Wilson testified about “numerous” and “very prominent” petechiae on the upper and lower skin of both eyes, as well as the conjunctival membrane of both eyes (A3584-87). Dr. Wilson also opined about eyewitness accounts regarding the color of Andrew Reister’s face immediately after defendant released his death grip. Regarding the petechiae, Dr. Wilson noted that its appearance was unusual in this type of case involving a chokehold because he had only seen this type of petechial pattern in cases of either post-mortem lividity (where blood pools based on the hydrostatic pressure of fluid after a body is laying down post-mortem for a long period of time) or where there was a “great sudden impact trauma” such as 48 one caused by a car rolling over a body (A3578-81). Because this was not a case of post-mortem lividity, Dr. Wilson opined that the petechiae resulted from “circumstances surrounding the death that led to a great deal of pressure being inflicted on those small vessels.” Accordingly, Dr. Wilson concluded that there must have been “a very severe degree of increased pressure in [Reister]’s face region” (A3580). Because this was a case with undisputed witness accounts that defendant placed Reister in a chokehold and based on his “experience and understanding of how petechiae occur,” Dr. Wilson concluded that it would take a “relatively long period of time (A3669) for a person to cause the type of petechiae.” Specifically, he opined that “this process” would take a “few minutes, 2, 3, perhaps 4” (A3673). Defendant did not object to this testimony (A3764). When asked about the witness accounts recalling the appearance of Andrew Reister’s extremely purple face upon release by defendant (A1480, A2911), Dr. Wilson explained that the “increased pressure” of neck compression caused by defendant’s continued chokehold could have caused the purpling. He reasoned that the pressure caused by defendant’s grip could readily have caused the “arteries to completely shut off arterial flow” and that this resulted in “the small vessels being full and then losing the oxygen and the appearance of this unoxygenated blood [becoming] very prominent in the skin and face” (A3693). Given the 49 circumstances surrounding Reister’s death, Dr. Wilson concluded that “[i]n my opinion and experience the blood that is built up over a period of time, then loss of oxygen to get very dark it would be a matter of a few minutes minimum, something on the order of 2, 3, 4 minutes…before I would expect the face to be extremely purple” (A3694). Again, there was no objection by the defense (A3694). d. Defendant’s argument on appeal is not properly preserved and is also based on facts that were not presented to the trial court In the Appellate Division, we argued that this claim was not properly preserved for appellate review because defendant did not object to the testimony at a time when the Court could have readily remedied the alleged offense – that it would be virtually impossible for the jury to disregard the testimony after the defense focused on it for days. Dr. Wilson’s testimony began on November 10, 2009. The testimony regarding the petechiae and the purpling occurred on the second day of Dr. Wilson’s testimony without any objection by the defense (A3674-77). The defense started cross-examination of Dr. Wilson on November 12th (A3748) and the trial adjourned for the weekend (A3768-78) with still no objection about Dr. Wilson’s testimony. The trial recommenced on Monday, November 16th and, on that day, the defense requested the trial court to interrupt Dr. Wilson’s testimony in order to take defense witness, Megan Flynn, out of turn. 50 Megan Flynn testified, there was a lengthy colloquy about Andrew Reister’s medical records, but still no objection regarding Dr. Wilson’s testimony. The defense resumed Dr. Wilson’s cross-examination armed with several articles that purportedly contradicted Dr. Wilson’s findings on the petechiae and purpling. The defense subjected Dr. Wilson to a very rigorous cross-examination and ultimately Dr. Wilson acknowledged that he could not cite to a specific piece of literature that acted as the basis for his conclusions on the petechiae and purpling. He admitted that his findings were not drawn from “any kind of medical or scientific literature but my knowledge of biology and medicine” (A3894) and “my experience which I learned from the scientific and medical literature about the work I do. So that my understanding of what things that I see are based upon my background in medicine and science” (A3915). Defendant’s first objection to Dr. Wilson’s testimony finally occurred on the third day of cross-examination, nearly a week after Dr. Wilson began testifying and after days of cross-examination focusing on his conclusions regarding purpling and petechiae. In the late afternoon of November 16th, defendant moved to strike this testimony because “it’s not based on any scientific principle or accepted literature, it’s based on this man’s own personal observations. And I don’t believe that that’s appropriate basis for expert testimony on these subjects” (A3918). The trial court denied the motion and noted that “I think what you’re raising goes to the weight 51 that it be given, not admissibility of the opinion based on the doctor’s expertise” (A3918). Notably, defendant never mentioned Frye or claimed that a hearing was necessary to test the validity of the forensic science. Instead, the defense acquiesced to the trial court’s ruling and for the rest of the afternoon continued its cross-examination – focusing still on the topics of petechiae and purpling (A3928, A3946, A3951). The next day, November 17th, the defense further cross-examined Dr. Wilson and made an evidentiary application about Megan Flynn, but did not renew the motion to strike Dr. Wilson’s testimony (A3784). It was not until the next afternoon, November 18th, after the end of Dr. Wilson’s testimony and during the testimony of the prosecution’s next witness, that the defense renewed its motion to strike Dr. Wilson’s testimony and notified the court of its intent to submit a written motion to strike those portions of Dr. Wilson’s testimony regarding petechiae and purpling (A4269-70). The trial court reserved decision pending submission of defendant’s written motion (A4281). Defendant submitted his motion (A616) the next day, November 19th. To support his motion, defendant attached two articles: “Asphyxial Deaths and Petechiae: A Review” (A630-33) and “Death Following Carotid Sinus Pressure” (A634-38). After the prosecution’s oral arguments opposing defendant’s application (A4474-81), the trial court denied the motion and cited Richardson’s 52 Section 7-315, which states “that a medical expert may give an opinion as to the nature, cause, extent and duration of the persons injure [sic] or disease or as to the cause of death.”29 The trial court held that “the testimony of Dr. Wilson applied these general principles and did not involve any novel science that would warrant a Frye hearing” (A4372-73). Specifically, the Court cited the Second Department’s decision in Lipschitz v Stein,30 and the Fourth Department’s decision in Diejoia v Gacioch,31 to support its ruling that a Frye hearing was not applicable because “the conclusions and testimony of Dr. Wilson was based on generally accepted theories that the doctor testified about and based on medicine and the practice of forensic pathology” (A4372-75). A review of what occurred at trial is important. Throughout defendant’s brief, he improperly refers to evidence that was not before the trial court when it denied defendant’s application for a Frye hearing. In analyzing whether the trial court abused its discretion, the analysis is limited to those facts that were actually presented to the trial court. On pages 57-58 of his brief, defendant argues that the 29 Prince, Richardson on Evidence, 11th Evidence §7-315. Medical Expert – Generally. 30 Lipschitz v Stein, 65 AD2d 573 (2d Dept 2009) (“Frye is not concerned with the reliability of a certain expert’s conclusions, but instead with whether the [expert’s] deductions are based on principles that are sufficiently established to have gained general acceptance as reliable…defendant’s factual disagreement with [plaintiff’s] causation theory did not require a Frye hearing”). 31 Diejoia v Gacioch, 42 AD3d 977 (4th Dept 2007) (theory of causation set forth not premised on novel science but, rather, is premised on “generally accepted scientific principles and existing data”). 53 trial court abused its discretion in not granting a Frye hearing despite what he contends “medical science” established in this case. According to defendant, this “medical science” made clear that a Frye hearing was required in this case. When defendant refers to “medical science,” his failure to cite to the trial record and his general reference to his own Statement of Facts is significant. His brief does not make clear that this evidence, which he labels as “medical science,” actually refers to defense evidence presented after the trial court’s evidentiary ruling, which occurred on November 19th. Dr. Daniel Spitz testified on November 20th (A4568) and Dr. John Kassotis testified on November 24th (A4857). Defendant’s evidence of “medical science” also refers to the roster of expert witnesses culled by defendant for his motion to set aside the verdict submitted on February 9, 2009 – all of these post-trial affidavits were dated between January and February 2010 (A76-355). Thus, to claim that the trial court abused its discretion when it did not evaluate defendant’s Frye application in light of this evidence of “medical science” is disingenuous. e. The trial court properly denied defendant’s application for a Frye hearing Since defendant’s argument on appeal is whether the trial court’s evidentiary ruling deprived defendant of a fair trial, the question before this Court then is whether the trial court abused its discretion when it denied, on November 19th, defendant’s motion to strike portions of Dr. Wilson’s testimony because it was 54 purportedly based on “novel scientific principles and procedures.” We urge the Court to reject defendant’s attempt to obfuscate the jurisprudence regarding Frye and what defines novel scientific principles and procedures. The mere fact that defendant disagrees with Dr. Wilson’s conclusions does not render it invalid. Dr. Wilson repeatedly testified that he drew his conclusions based upon his experience in medicine and forensic pathology. Just because the defense armed itself with literature that allegedly contradicted Dr. Wilson’s conclusions, it did not undermine the foundation of his knowledge. As adroitly pointed out by the trial court, any doubt as to the veracity of Dr. Wilson’s conclusions went to the weight – not the admissibility – of the evidence. In People v Wesley, this Court noted that the “long recognized rule of Frye v United States is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field.”32 A review of the record reveals that Dr. Wilson unequivocally testified that his conclusions regarding the petechiae and purpling were based upon his understanding of medicine, biology and forensic pathology. He employed no novel science or methodology as a basis for his conclusions. Thus, the trial court properly held that Frye was not implicated in this case. 32 People v Wesley, 83 NY2d 417 (1994). 55 As noted by Richardson on Evidence,33 “[a] medical expert may give an opinion as to the nature, cause, extent and duration of a person’s injury or disease, or as to the cause of death.” This section in Richardson’s encapsulates the longstanding rule in New York that, “[t]he opinion of a medical expert, based upon facts within his own knowledge and observation as to the nature of the affection from which a party is suffering, and whether it was produced by violence or disease, has long been held competent by this court. The cause or effect of a physical injury can frequently be proved in no other way than by the opinions of those specially qualified by experience and study, based upon the facts in evidence, and either known to the witness or assumed to be true (citations omitted).”34 An expert may acquire his skill “either from study, experience or observation. No precise rule has been formulated and applied as to the exact manner in which such skill and experience must be acquired” and “a physician may qualify himself from study of the subject alone (citations omitted).35 The extent of the expert’s 33 Prince, Richardson on Evidence, 11th Evidence §7-315. Medical Expert – Generally. 34 Stouter v Manhattan Ry. Co., 127 N.Y. 661 (1891) (Holding that a physician, after testifying to his personal observation of a bruise and fracture, could state in his opinion that subsequent inflammation and abscess found in same place was caused by the former). 35 Meiselman v Crown Hgts. Hosp., 285 N 389 (1941) (Error of law to hold that witness was not qualified to testify as medical expert as to the proper practice of medicine in America in 1932 where evidence showed that although expert was a practicing physician and surgeon of New York and extensively educated and trained in Germany because he did not reside in the United States in 1932). 56 qualifications is always a proper subject for the jury on the question of weight to be given to his testimony.”36 A Frye hearing regarding the acceptance of these principles and procedures in the medical community was not necessary in this case. The scientific principles supporting autopsies and a physician’s determination of causation are well established and accepted in the medical community. Thus, the trial court properly cited to the Second Department cases that held that “[m]edical examiners have been permitted to testify to their opinion if it is based on facts in evidence, personal knowledge of the witness, and experience in forensic medicine (A16).”37 Indeed, the acceptance of forensic medicine and its method for determining causation are so “notoriously” accepted, that the Court could have taken judicial notice of its reliability.38 After the prosecution established the proper foundation that Dr. Wilson was qualified to testify as an expert in forensic pathology, it was up for the jury to determine whether his conclusions were valid. “The foundation did not and should not include a determination by the court that such evidence is true. That function should be left to the jury.”39 As noted by the trial court in its decision denying 36 Meiselman v Crown Hgts. Hosp., 285 N 389 (1941). 37 Citing People v Robinson, 61 AD3d 784 (2d Dept 2009), lv denied, 12 NY3d 920 (2009); People v South, 47 AD3d 734, 735 (2d Dept 2008). 38 See, Richardson on Evidence, §7-311, 11th edition, p 476. 39 People v Wesley, 83 NY2d at 425, citing United States v Jakobetz, 955 F2d 786 (2d Cir 1992). 57 defendant’s motion to set aside the verdict (notably not raised as an issue in this appeal): The fact that defendant does not agree with this opinion does not affect its admissibility. Defendant was free to call his own experts to testify as to their difference of opinion with Dr. Wilson’s opinion. Indeed, defendant called a Medical Examiner to testify at trial, Dr. Daniel J. Spitz, Chief Medical Examiner, Macomb County, Michigan. Also, Dr. Charles Wetli, retired Chief Medical Examiner here in Suffolk County, New York, appeared on defendant’s trial witness list, but defendant chose not to call him as a witness (A16-7). Dr. Wilson’s conclusions rested on the facts in evidence, his physical examination of Andrew Reister, and his own extensive experience in forensic medicine. The fact that there was no textual authority directly on point with Dr. Wilson’s conclusion was “relevant only to the weight to be given the testimony, but [did] not preclude its admissibility.”40 f. Defendant misconstrues this Court’s holding in Parker v Mobil Oil Corp.41 Citing this Court’s decision in Parker v Mobil Oil, Corp., defendant argues that both the trial court and the Appellate Division erred because their rationale reflected a fundamental misunderstanding of Frye and Parker – “Frye is concerned not only with whether the expert’s methodology is generally accepted. Frye is also 40 Zito v Zabarsky, 28 AD3d 42, 45 (2d Dept 2006). See also, Diejoia at 979. 41 Parker v Mobil Oil Corp., 7 NY3d 434 (2006). 58 concerned with whether the principles that underlie the expert’s opinion are generally accepted as well” (DB 56). Defendant improperly conflates the decision in Parker with the Frye rule. In Parker, a gas station attendant (Parker) sued Mobil Oil Corporation on grounds that his prolonged exposure to the benzene in gasoline caused him to develop Acute Myelegenous Leukemia. Pivotal to Parker’s case was expert testimony regarding the causal relationship between his exposure to benzene and subsequent leukemia. In Parker, the trial court denied Mobil Oil Corporation’s motion to preclude Parker’s expert testimony. Neither side requested a Frye hearing, but Mobil Oil Corporation moved to preclude the expert testimony on the issue of medical causation because the expert testimony was scientifically unreliable and therefore inadmissible under Frye. The trial court permitted the testimony because it determined that Parker’s experts followed generally accepted principles and methodology by “detailing Parker’s exposure, demonstrating the link between benzene and leukemia and presenting a dose-response.”42 The Appellate Division reversed and dismissed the complaint. According to the Appellate Division, Parker’s experts had not drawn their conclusions “through a scientifically-reliable methodology.”43 42 Id. at 442. 43 Id. at 446. 59 In Parker, this Court affirmed the Appellate Division’s dismissal of the complaint but not because of the Appellate Division’s methodology theory. Instead, the Court held that Frye was not applicable in Parker because “[t]here is no particular novel methodology at issue for which the Court needs to determine whether there is a general acceptance.” Instead, the inquiry focused on “whether there is an appropriate foundation for the expert’s opinions, rather than whether the opinions are admissible under Frye.”44 Parker actually supports our position and makes clear that defendant’s argument is without merit. Under Parker, Dr. Wilson’s testimony would have been unquestionably admissible. Likewise, there is “no particular novel methodology at issue” in this case – as discussed above, the science of medicine is well established. The question then is whether Dr. Wilson had “an appropriate foundation” to render an opinion. We submit that there was no better person suited to provide expert testimony with respect the cause of Reister’s injuries and death. The trial court properly concluded that Dr. Wilson was undoubtedly qualified as a forensic pathologist and medical doctor45 and Dr. Wilson physically observed Reister two days before he was declared brain dead and conducted the autopsy. 44 Id. at 448. 45 In its decision denying defendant’s CPL §330.30 motion, the trial court noted, “Dr. Wilson, as a medical examiner, testified as to his professional opinion, and that opinion was based on facts and interpretation of those facts, based upon his forensic medical education and extensive experience as a medical examiner” (A17). 60 The essence of defendant’s objection at trial was that Dr. Wilson had no proper foundation for his opinion – namely, that he could not cite to any specific authority to substantiate his conclusions regarding the petechiae and purpling. This objection, however, does not translate into a Frye claim. Contrary to his claim on appeal, defendant’s objection to Dr. Wilson’s testimony did not “go to the very medical principles upon which Dr. Wilson explicitly relied” (DB 60-61). There was never a claim that he applied any new, emerging or rogue medical science when Dr. Wilson drew his conclusion, but rather that he was unable to cite to any authoritative medical literature to substantiate his opinion – essentially, Dr. Wilson’s qualifications as an expert witness. Defendant, however, could not challenge Dr. Wilson’s qualifications. His entire defense rested on Dr. Wilson’s conclusion regarding the cause of death – not asphyxiation but, rather brain death caused by neck compression (A3651) – and defendant’s claim that Reister died as a result of a freak accident caused by “fleeting” pressure to the carotid sinus. So when Dr. Wilson advanced unfavorable and damaging testimony, the defense attempted to strike the evidence by distorting and stretching the meaning of Frye v U.S. – not by challenging his qualifications because it would have undermined their defense. On appeal, defendant invites the Court to expressly hold that there is no “medical examiner exception to the requirements of the Frye and Parker 61 doctrines.” Defendant argues that the Court should fulfill its “gatekeeper function” and hold that whenever “a challenge to the admission of a medical examiner’s opinion does arise, the courts should have no hesitancy to take the time and make the effort to determine whether the examiner’s opinion is rooted in accepted medical principles” (DB 63). Substantively, what defendant is actually asking the Court do is make a “medical examiner’s exception” to the long established recognition that qualified physicians may always testify about their opinion as to the “nature, cause, extent and duration of a person’s injury or disease, or as to the cause of death.”46 And the extent of the expert’s qualifications and the veracity of their conclusions is a “proper subject for the jury on the question of weight to be given the testimony.”47 Lastly, we urge the Court to decline defendant’s invitation to liken this case to Rivas v Fisher,48 which defendant claims “bear[s] a striking similarity” with his own case and where he alleged the “only notable difference between Rivas and this case is that, in this case Dr. Wecht’s [one of the experts who submitted a post-trial affidavit] opinions on the critical issues were joined in by seven additional experts with similarly stellar credentials “(DB 60). Again, we direct the Court to defendant’s attempt to mislead the Court regarding what evidence was actually 46 Richardson on Evidence §7-315. 47 Meiselman v Crown Hgts. Hosp., 285 N 389 (1941); People v Wesley, 83 NY2d at 425. 48 Rivas v Fisher, 687 F3d 514, 544 (2d Cir 2012). 62 before the trial court when it made its ruling. Dr. Wecht did not testify at this trial and his affidavit was submitted more than two months after defendant’s trial concluded. Nevertheless, defendant’s attempt to compare his case to Rivas is farfetched. Rivas was a case involving a claim of actual innocence where a defendant was charged with the murder of his ex-girlfriend more than six years after the crime occurred. The basis for reopening this cold case was a new report by the medical examiner who previously conducted the victim’s autopsy and concluded that her time of death was Saturday, March 27, 1987 – a time for which defendant Rivas had an unassailable alibi. But after the newly elected District Attorney approached the medical examiner to review “the autopsy report with an eye toward expanding the time of death to include Friday, March 26, 1987,” when the defendant’s alibi was not so strong,49 the medical examiner issued a new finding regarding the cause of death that incorporated this time frame. At the time the request was made, the same medical examiner was under “criminal investigation by the District Attorney’s Office, as well as by the Department of Health [and] the Department of Conservation for varieties of misconduct including improper waste, stealing and mishandling of body parts.”50 In that case, Dr. Wecht contradicted the 49 Id. at 521. 50 Id. 63 medical examiner’s reevaluation of the doctor’s recent finding regarding the time of death. The only bearing that Rivas has to defendant’s case is that it illustrates that the proper way to challenge an expert’s opinion is through cross-examination and by presenting alternative evidence – not by a belated motion to strike testimony on tenuous claims that it violated Frye. The trial court’s ruling was proper in all respects. It was not an abuse of discretion and the judgment of conviction should therefore be affirmed. 3. The trial court’s decision to preclude the expert testimony of Dr. Steven Penrod was a sound exercise of discretion The trial court properly precluded the defense from calling Dr. Steven Penrod to testify because his testimony about the reliability of witness observation was within the ken of an average juror and unnecessary. This was not a case of possible mistaken identity, where the finding of a defendant’s guilt or innocence hinged on one witness’s testimony. This was a case where numerous witnesses observed defendant place Andrew Reister in a chokehold and maintain it upon an unconscious Reister for up to four minutes. Discrepancies as to the duration of the chokehold, sequence of events and what was seen or heard were a natural result of that many witnesses recollecting a traumatic and violent event. This evaluation was a matter of commonsense and assessing each witnesses’ credibility – the role of a jury and not an expert witness. 64 a. Factual background Although the defense focused its cross-examination on all of the themes that Dr. Penrod was expected to testify about, the prosecution was not alerted of the defense’s intent to call him as an expert witness until November 20, 2009 (more than a month after trial had commenced) when it provided Dr. Penrod’s curriculum vitae as part of its reverse discovery/Rosario package (A4548-51).51 Before the defense started its case, the prosecution moved to preclude any expert testimony regarding eyewitness identification as this was not a case where identification was a central issue. When asked for an offer of proof regarding Dr. Penrod’s expected testimony, the defense responded that it would be calling Dr. Penrod as an “expert regarding eyewitness observations and specifically in the areas of memory and time” (A4558-9). The trial court allowed both sides to develop their arguments the following Monday, November 23rd (A4649, A4841). The defense provided a detailed offer of proof: MS. KEDIA: Yes, Your Honor. I anticipate calling Dr. Penrod as an expert on the issue of eyewitness observations. Specifically, I anticipate Dr. Penrod testifying regarding the numerous complex factors that affect memory and perception, and how people’s memories and perception are affected by a variety of 51 Notably, the potential witness list provided by the defense during voir dire (10/5, 71-72) included only the name of Daniel Sullivan, the owner of the Southampton Publick House. None of the expert witnesses (Doctors Daniel Spitz, John Kassotis, Steven Penrod) or the civilian witnesses (Kira Leader, Shamir Cohen) were included with this list although all the witnesses testified that the defense had contacted them well before the trial. 65 factors, including media accounts, of which there has been much testimony, discussions with other individuals as well as discussions with law enforcement. I additionally anticipate Dr. Penrod testifying about memory and perception being impacted by a number of variables pertaining to the event such as lighting conditions and alcohol, noise, and with respect to the particular witness, things such as stress, panic, and again, alcohol intoxication. Additionally, I anticipate Dr. Penrod testifying about the amount of time, that, regarding any particular event a witness’s observations, regarding time are routinely overestimated, especially in situations such as the one that occurred here (A4842). To support his claim, defendant submitted case law that focused on the issue of eyewitness identification (A4844) but conceded that this was not an “issue in this particular case” (A4844). Nevertheless, the defense claimed that the same principles applied and since the science behind expert testimony regarding eyewitness testimony was generally accepted, Dr. Penrod should be permitted to testify about eyewitness observations and the “time during which an incident or a particular event took place” (A4844-45). The prosecution argued that defendant’s reliance on LeGrand52 and its progeny were not applicable in this case since identification was not an issue – especially in light of the extensive corroborative evidence connecting defendant to the crime. Instead, defense counsel was impermissibly attempting to broaden the 52 People v LeGrand, 8 NY3d 449 (2007). 66 scope of LeGrand and its progeny to apply to the reliability of eyewitness observations in general. Moreover, the scientific studies relied upon by Dr. Penrod focused on studies about eyewitness identification and police identification procedures – which unlike the reliability or unreliability of a witness’s observations – was information generally not within the ken of an average juror (A4848-49). Based on the “specific nature of the offer of proof and the proposed area of testimony,” the Court precluded defendant from calling Dr. Penrod and noted that it would provide a more detailed decision in writing at a later date. Also, the trial court denied defendant’s request for a live proffer by Dr. Penrod, as well as for a Frye hearing regarding Dr. Penrod’s studies (A4849-50). The next day, the defense renewed its application and submitted an affidavit from Dr. Penrod regarding his potential testimony and his curriculum vitae (Court Exhibits 21, 22; A5092, A7132, A7190). Again, the trial court denied defendant’s application (A5093). On December 16, 2009, the Court, in its written decision, noted that “this is not a case which calls for the testimony of an expert” as delineated by LeGrand because the “identity (emphasis in original) of the defendant as the perpetrator is not the central issue in the testimony of these eyewitnesses” and because there was “significant corroborating evidence connecting defendant to the crime.” 67 The Court, therefore, exercises its discretion by denying defendant’s application to call an expert witness at trial to testify regarding the psychology of eyewitness observations, based on the LeGrand line of cases involving the reliability of eyewitness identifications (emphasis in original). Citing People v Tocci, 52 AD3d 541 (2d Dept 2008). Further, the trial court held that the “proposed testimony is not on a topic beyond the ken of an average jury” and [h]aving concluded that the testimony may not be allowed on the issue of eyewitness identification (emphasis in original), the defendant’s offer of proof amounts to a request to present testimony regarding the psychological aspects of eyewitness observations generally. The jury does not need an expert witness, in a case where identification is not an issue, to explain that memory and perception are affected by lighting, alcohol ingestion, noise, stress and panic. The Court specifically finds that this area is well within the ordinary experience and knowledge of the average juror. Expert testimony on this subject, is therefore, unnecessary to assist the jury in this regard (A9-10). Accordingly, the trial court denied defendant’s request to provide a live offer of proof from Dr. Penrod. Also, the Court determined that defendant’s request for a Frye hearing was rendered moot by its decision (A10). On appeal, defendant claimed the trial court’s evidentiary ruling was in error and raised essentially the same points raised in this brief. The Second Department 68 did not directly address defendant’s claim. Instead it held that “defendant’s remaining contentions are without merit or do not require reversal.”53 b. Standard of Review Generally, whether or not expert testimony is “admissible on a particular point is a mixed question of law and fact addressed primarily to the discretion of the trial court”54 and “review by the intermediate level is generally unwarranted.”55 “The admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court.”56 It is the trial court’s obligation to determine “when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefited by the specialized knowledge of an expert witness.”57 The trial court’s evidentiary ruling was a sound exercise of the trial court’s discretion. Again, the standard of review is not de novo as argued by defendant, unlike the trial courts in People v Lee58 and People v Cronin,59 where the trial courts did not exercise its discretion. Here, the trial court properly weighed defendant’s offer of proof regarding Dr. Penrod’s testimony with the facts of the case and the 53 People v Oddone, 89 AD3d at 870. 54 Selkowitz v County of Nassau, 45 NY2d 97, 101-2 (1978). 55 People v Cronin, 60 NY2d 430, 433 (1983) (Where trial court failed to exercise its discretion because it erroneously believed that it had no discretion to exercise, this was not a proper application of the test for expert testimony and presented a legal issue for review by the Court). 56 People v Lee, 96 NY2d 157, 162 (2001). 57 Id. at 433. 58 People v Lee, 96 NY2d 157, 162-63 (2001). 59 People v Cronin, 60 NY2d 430, 433 (1983). 69 pertinent law when it denied defendant’s application. The Court’s decision was a sound one, predicated on defendant’s extensive written filings (including an affidavit by Dr. Penrod) and two days of legal discussion, notably, all which occurred during the heat of trial. c. The trial court properly ruled that LeGrand and its progeny were not applicable to this case Defendant argues that the trial court erred because it based its ruling principally on whether identification was an issue in this case. Defendant contends that there is “nothing in LeGrand or the cases following it that so holds” (DB 70). But the holding in LeGrand is clear: We hold that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness testimony.60 This is because LeGrand and its progeny focus on “the centrality of the identification issue”61 – and not on a general rule regarding witness observations. The overriding concern in all of these cases is mistaken identity and whether a defendant’s guilt or innocence hinges on the testimony of weak identification and little or no corroborative evidence. 60 People v LeGrand, 8 NY3d at 452; citing People v Lee, 96 NY2d 157 (2001). 61 People v LeGrand, 8 NY3d at 456; citing People v Lee, 96 NY2d at 163. 70 During the trial, defendant conceded that identification was not an issue in this case (A4844). Several witnesses identified defendant (A1480-81, A1620, A1985, A2166, A2194, A2411) and there were several pictures of defendant dancing on tables immediately before the attack. From the photos, the jury could see the flip-flops and necklace defendant left at the scene after he fled. Defendant’s physical appearance, as well as his self-serving statement that it was “self-defense,” corroborated his identity as the perpetrator. Also, DNA matching Andrew Reister was discovered on defendant’s wrist (A3379). Since this was not a case of mistaken identity, the type of expert testimony permitted by LeGrand and its progeny was not relevant here. The field of science generally accepted in these cases focused on the issues of mistaken identity, reliability of eyewitness identifications and police identification procedures – not the reliability or credibility of witness observations in general. Thus, Dr. Penrod’s potential testimony regarding the effects of suggestive questioning, hindsight bias and exposure to other witness testimony was not appropriate. Contrary to defendant’s claim, this does not constitute a “per se rule prohibiting [expert witnesses] from testifying about the fallibility of their [a witness’s] ability to identify any other aspect of an event” (DB 71). Instead, LeGrand and its progeny limit this type of evidence – evaluations not outside the ken of the ordinary experience or knowledge of an average juror – in cases where it 71 “turns on the accuracy of eyewitness identification and there is little or no corroborating evidence connecting defendant to the crime.”62 In People v Santiago,63 this Court reversed a conviction because the trial court abused its discretion when it excluded expert testimony regarding eyewitness identification. In that case, the only person who could identify defendant was the victim who had only interacted with him for approximately ten minutes while his face was partially covered. Also, there was no physical evidence connecting defendant to the crime. The Court recognized that LeGrand set the standards governing the discretion of the trial courts in regard to the admission of expert testimony on eyewitness testimony. According to the Court, “[t]he first stage is deciding whether the ‘case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence.’”64 The Court noted that if “sufficient evidence corroborates an eyewitness’s identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of the analysis, because testimony concerning eyewitness identifications is unnecessary.”65 62 People v LeGrand, 8 NY3d at 452. 63 People v Santiago, 17 NY3d 661 (2011). 64 Id. at 669. 65 Id. 72 Assuming arguendo that defendant’s position that LeGrand is not limited solely to cases involving eyewitness identification, the trial court properly prohibited Dr. Penrod from testifying based upon grounds enunciated in Santiago. In all of the cases permitting expert opinion testimony regarding eyewitness testimony, the gist of the Court’s rationale is clear – the less evidence of defendant’s guilt there is, the more likely defendant is entitled to present expert testimony. The policy behind this, of course, is the concern that a defendant will be wrongfully convicted based on a witness’s weak testimony and no corroborating evidence. But this was not such a case. Again, this was a case where numerous witnesses observed defendant place Andrew Reister in a chokehold and maintain it upon an unconscious Reister for up to four minutes. And although defendant’s own friends were there and witnessed the event, he did not call any of them as witnesses. Instead, he presented the inconsistent evidence of Kira Leader and Shamir Cohen. The fact that the trial evidence was unfavorable to the defense did not entitle him to Dr. Penrod’s expert opinion testimony. Dr. Penrod’s testimony was an attempt to undermine the witness credibility – that is, Dr. Penrod would have testified that the witnesses were wrong and the event was much shorter than they recalled. Nevertheless, the Court’s jurisprudence since LeGrand makes clear that it does not support defendant’s attempts to broaden its ruling to include expert 73 testimony about eyewitness testimony regarding the events observed. Moreover, we urge the Court reject defendant’s reliance on cases from other jurisdictions that he claims provides public policy support to broaden the scope of LeGrand. All of the cases cited by defendant are distinguishable because they involve eyewitness identification testimony in cases where the identification evidence was weak and there was little to no corroborative evidence.66 The trial court properly precluded Dr. Penrod from testifying in this case. As evidenced by the Court’s rationale in its written decision, the trial court appropriately determined that the jurors would be able to assess the reliability of the eyewitness observations in light of the surrounding circumstances and expert testimony was not necessary since it was “well within the ordinary experience and knowledge of the average juror” (A10). 66 See, State v Lawson, 352 Or 724 (2012) (consolidated case where defendant’s conviction was based, for the most part, on eyewitness identification evidence); Benn v United States, 978 A2d 1257 (DC 2009) (case where identity was the issue and there was no corroborative evidence to support identification); State v Henderson, 208 N.J. 208 (2011) (eyewitness identification case where evidence existed that sole witnesses identification was product of improper suggestion); United States v Graves, 465 FSupp2d 459 (ED Pennsylvania 2006) (where eyewitness identification is crucial to a case, court should be entitled to in limine hearing to determine admissibility of expert testimony on reliability of eyewitness testimony). 74 4. The trial court properly prohibited defendant from questioning his own witness with a prior unsworn unwritten statement a. Factual background Megan Flynn, a waitress at the Publick House, also observed the end of defendant’s attack on Andrew Reister. When she reached the doorway area, she saw Austin Everhart pulling defendant by his legs in an attempt to pry defendant off of Reister (A3810-19). When defense counsel asked Megan Flynn how long a period of time it was from when she “walked in to the time [she] saw the guy let go,” Flynn responded that “I didn’t have a watch. I wasn’t keeping track of time. But it could have been a minute or so. I don’t know” (A3817). Defense counsel then asked Flynn: Q. Now, when you say that it could have been a minute or so, do you recall that you have discussed this situation in the past, right? A. Yes. Q. So let me show you something, see if it refreshes your recollection. MS. MERRIFIELD: Objection. THE COURT: Sustained (A3817:10-17). Counsel then requested further argument regarding the issue at sidebar. During this colloquy, counsel argued that she should be permitted to ask the witness about the contents of an unsworn, unwritten statement that Flynn had made to an insurance agent: Ms. Flynn during her recorded interview has stated that it was a moment, a matter of 6 to 10 seconds from the time 75 that she walked in to the time the guy let go to the time that the guy let go and left the premises. I’m going to ask that this that be admitted either to be able to refresh Ms. Flynn’s recollection or that it be admitted as a past recorded recollection (A3818). In sustaining the prosecution’s objection, the trial court determined that defendant’s proffered questioning was improper because the foundational requirements for refreshing the witness’ recollection were not met: THE COURT: I’m going to sustain the objection. There’s no basis. It’s direct examination. It’s an effort to impeach your own witness here. She’s given an answer which apparently might be different from some prior statements. But it’s an unsworn interview as well. I don’t think there’s any basis to introduce the statement to show cause. The witness’s statement – she’s given no indication she needs her memory refreshed. She’s answered the question. I’m going to sustain the objection (A3818-19). In presenting further argument to the trial court, defendant argued that Flynn had indicated that “she doesn’t recall,” despite Flynn’s testimony that she did not know how much time had elapsed. The Court again sustained the People’s objection (A3819:16). Immediately following this, the defense continued to attempt to ask Flynn about the contents of her prior statement: Q. Ms. Flynn, you said from the time that you walked in or you saw what you saw? A. Yes. Q. To the time you saw the guy leave, do you recall how long it was? A. I can’t give you an exact time. I didn’t have a watch or anything. 76 Q. Was there a point in time when you recalled how long it was? A. I mean, maybe the day after, the day of the incident maybe. But even while it was occurring it was just stressful, I was in a panic, I was worried about whoever was on the floor. I don’t know. Q. When you were interviewed by the person from the insurance company at the time did you recall how long of a period of time it was? MS. MERRIFIELD: Objection. THE COURT: Sustained. Sustained. You don’t have to answer that (A3819-20). Defendant then abandoned this line of questioning, but revisited it the next day, arguing that Flynn had been called as a defense witness in order to elicit that “Ms. Flynn specifically made a statement to the person that had interviewed her from the insurance company that her estimate of the time that Mr. Reister was in this neck hold from the time that she walked in to the time that the individual placing it in the hold left was 6 to 10 seconds…When she testified after being called as a defense witness she conveniently forgot how much time or couldn’t recall how much time had passed” (A4030). For the third time, the trial court denied defendant’s request to allow the questioning. The trial court noted that the interview was recorded at “a significantly later time than the events” and also because “the witness never gave any indication that she needed her recollection refreshed.” The trial court maintained its view that defense counsel’s was inappropriately attempting to impeach her own witness with a prior inconsistent statement (A4032-33). 77 b. The trial court properly prohibited defendant from attempting to refresh the witness’s recollection Defendant argues that the trial court should have allowed him to question Flynn about her prior audio recorded statements to an insurance agent in order to refresh her recollection, stating that her equivocal testimony opened the door to such questioning. Defendant is mistaken. A review of the record reveals that defendant did not establish a sufficient foundation to refresh Megan Flynn’s recollection. In order to refresh a witness’s recollection, a party must establish that the witness’s current memory is exhausted before he is entitled to resort to efforts to spark the witness’s memory.67 At trial, Flynn did not testify that she could not recall how long she observed defendant choking Andrew Reister. Flynn instead unequivocally testified that she did not know how much time had elapsed from when she walked into the room to when she saw defendant let go of Reister (A3817). The trial court correctly observed that the witness had “given no indication she needs her memory refreshed” (A3819). CPL §60.35(3) governs the use of prior statements to refresh the recollection of a party’s own witness. The statute provides: 67 See, Nappi v Gerdts, 103 AD2d 737 (2d Dept 1984) (improper to seek to refresh recollection of witness unless witness indicates current inability to recall sufficient facts to testify from memory). See also, 5 NY Prac, Evidence in New York State and Federal Courts, §6:80, p 2 (West 2003). 78 When a witness has made a prior signed or sworn statement contradictory to his testimony in a criminal proceeding upon a material issue of the case, but his testimony does not tend to disprove the position of the party who called him and elicited such testimony, evidence that the witness made such prior statement is not admissible, and such party may not use such prior statement for the purpose of refreshing the recollection of the witness in a manner that discloses its contents to the trier of the facts. The prohibition against a party using a prior statement in a manner that discloses its contents is thus based in statute and has been upheld by this Court in the context of a criminal case.68 In this case, however, defendant’s stated purpose was to have Flynn’s prior recorded interview admitted into evidence (A3819). The trial court, therefore, properly refused to allow Flynn’s prior recorded statement to be used to refresh her recollection, and properly refused to allow it to be introduced into evidence. On appeal, defendant claimed the trial court’s evidentiary ruling was in error and raised essentially the same points raised in this brief; the Second Department did not directly address defendant’s claim. Instead it held that “defendant’s remaining contentions are without merit or do not require reversal.”69 68 See, People v Fitzpatrick, 40 NY2d 44, 50-51 (1976). 69 People v Oddone, 89 AD3d at 870. 79 c. CPL §60.35 governs the use of statements to refresh recollection and the Surprise Doctrine is inapplicable Defendant argues, as he did in the Appellate Division, that because he called Flynn as a witness in reliance of her statement to the insurance agent, he should have been permitted to question her about that statement when her testimony was at variance to it. Relying heavily on Bullard v Pearsall70 and the doctrine of surprise, he was entitled to interrogate Megan Flynn for the purpose of “refreshing or probing the witness’s recollection, and of providing an opportunity to explain the apparent inconsistency” (DB 80, fn 77). Defendant argues that he was not attempting to impeach Flynn, but the tenor of the proffered questioning makes it clear that this was indeed the purpose of asking Flynn about her prior statement. In criminal cases, the rules governing the use of a prior inconsistent statement against a party’s own witness is entirely governed by CPL §60.35 and the cases cited by defendant referring to “surprise” are not persuasive. CPL §60.35 provides the basic requirements for the introduction of a witness’s prior statement in these circumstances: 1. When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony. 70 Bullard v Pearsall, 53 NY 230 (1873). 80 The statement at issue here is neither a written statement signed by Flynn, nor is it an oral statement made under oath. There was, therefore, no authority to support defendant’s contention that the statement could be used to refresh Flynn’s recollection, even assuming it needed refreshing, or to admit the statement as evidence. Moreover, defendant could have impeached Flynn if he established that she was a hostile witness but the defense did not attempt to do so here. Thus, although there was an evidentiary mechanism by which defendant may have impeached Flynn, he did not pursue it. Defendant’s failure to do so however does not render the trial court’s evidentiary ruling as improper. d. Defendant’s challenge to the constitutionality of CPL §60.35 is unpreserved for appellate review and without merit Although defendant claimed in his appeal to the Appellate Division that the trial court’s ruling deprived him of his constitutional rights to confrontation and due process, he is now raising, for the first time on appeal to this Court, an argument that CPL §60.35 is unconstitutional on its face. His argument is unpreserved for appellate review and without merit. First, defendant’s challenge to the facial constitutionality of CPL §60.35 is unpreserved for this Court’s review. As this Court held in People v Baumann & Sons Buses, Inc.,71 the requirement to preserve a challenge to the constitutionality of a statute: 71 People v Baumann & Sons Buses, Inc., 6 NY3d 404 (2006). 81 “...is no mere formalism, but ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established beyond a reasonable doubt. Moreover, while courts must construe statutes so as to preserve their constitutionality whenever possible, an appellate court is not required to undertake such a construction when no constitutional issue has been raised below.”72 Defendant’s attempt to raise, for the first time on appeal to this Court, a challenge to the constitutionality of CPL §60.35, should be rejected as unpreserved. Should this Court reach the merits of defendant’s argument, we urge that he has failed to demonstrate how CPL §60.35 is unconstitutional on its face or as applied to him. Citing People v Williams73 and Chambers v Mississippi,74 defendant claims that it was “plain error” for the trial court to adhere to the tenets of CPL §60.35. Courts have consistently held, however, that an accused’s right to examine witnesses and present a defense is not absolute. As stated by this Court in Williams, the Sixth Amendment cannot be read to “confer the right to present testimony free from the legitimate demands of the adversarial system.”75 Thus, evidentiary restrictions such as those set forth in CPL §60.35 “are to be voided 72 Id. at 408 (internal citations omitted). 73 People v Williams, 81 NY2d 303, 313 (1993). 74 Chambers v Mississippi, 410 U.S. 284 (1973). 75 People v Williams, 81 NY2d at 313. 82 only if they are ‘arbitrary or disproportionate to the purposes they are designed to serve.’”76 Here, the trial court did not employ a mechanistic approach to the evidence. Instead, it applied “due consideration of the individualized circumstances and interests present in the matter before it.”77 The record reveals that the trial court properly accounted for the circumstances surrounding defendant’s attempt to use Megan Flynn’s prior unsworn statement when it determined that the defense was impermissibly attempting to impeach its own witness. Defendant was not deprived of his right to present a defense or to confront witnesses. The trial court simply ensured that the presentation of evidence and the questioning of witnesses followed well-known and accepted statutory rules of evidence. The fact that defendant is unhappy with the result does not make the statute unconstitutional. 76 Id. at 312 (internal citations omitted). 77 See, Chambers v Mississippi, 410 U.S. at 302. 83 POINT TWO DEFENDANT WAS NOT DEPRIVED OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY. Two events relating to the conduct of the jurors occurred at defendant’s trial that he now claims deprived him of a fair trial. Both claims are preserved as they were previously presented to the trial court and the Appellate Division and rejected by both. We discuss below the specific actions taken by the trial court in reaction to each juror event. Below, the Appellate Division denied defendant’s juror claim without comment and merely held that “defendant’s remaining contentions are without merit or do not require reversal.”78 Contrary to defendant’s claim on appeal, this does not subject either of the previous courts’ rulings to de novo review. Again, citing People v Borges,79 defendant contends that the issue is entitled to de novo review because the trial court allegedly applied the wrong legal standard. Defendant vaguely cites People v Harris,80 a case that has no language with respect to de novo review, or even about reviewability in general, and People 78 People v Oddone, 89 AD3d 868 (2011). 79 People v Borges, 69 NY2d 1031 (1987) (Case where issue was whether defendant consented to search of his apartment or whether there was sufficient attenuation and the hearing court only determined the question of voluntariness, the hearing court’s failure to address the attenuation issue [a mixed question of law and fact] became reviewable by the Court as a matter of law). 80 People v Harris, 19 NY3d 679 (2012) (The trial court committed reversible error in denying defendant’s for-cause challenge where prospective juror indicated she had a preexisting opinion and trial court failed to elicit unequivocal assurance of her impartiality). 84 v Rickert,81 a case interpreting CPL §170.40 and a local criminal court’s authority to dismiss an information in the interests of justice. All of the cases cited by defendant have absolutely no bearing on the standard of review for the claim regarding Juror Number Three (“FO”) (reviewability of a trial court’s denial of motion to set aside a verdict pursuant to CPL §330.30) or Juror Number Two (“TB”) (reviewability of trial court’s denial to disqualify a juror under CPL §270.35). Below, we provide the applicable standard of review for each claim. 1. Juror Number Three: FO, A classic case of juror’s remorse and an improper attempt to impeach the verdict a. Defendant’s motion to set aside the verdict and the trial court’s decision Defendant presented his first complaint about FO in his motion to set aside the verdict pursuant to CPL §330.30 on February 9, 2010 (A18-48). CPL §330.30(2) provides that, after a guilty verdict and before sentence, a court may set aside the verdict, upon defendant’s motion, on the ground: [t]hat during the trial there occurred, out of the presence of the court, improper conduct by a juror or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict. According to defendant, he was deprived of his right to a fair and impartial jury because FO, the hold out juror for his acquittal for the crimes of Murder in the 81 People v Rickert, 58 NY2d 122 (1983). 85 Second Degree and Manslaughter in the Second Degree, ultimately voted against him after she became allegedly “beholden” to the prosecution because her son was arrested for felony drug charges in Suffolk County. On April 12, 2010, the trial court issued a lengthy written decision denying defendant’s motion to set aside the verdict without a hearing. Citing People v Brown,82 the trial court held: “Generally, a jury verdict may not be impeached by proof of the tenor of its deliberations, but it may be upon a showing of improper influence. Improper influence, of course, embraces not merely corrupt attempts to affect the jury process but even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial. Thus, in People v Crimmins, and People v DeLucia, this Court set aside verdicts where jurors had made unauthorized visits to locations described in trial testimony, finding the jury conduct under those circumstances to be inherently prejudicial to the defendant’s historic rights of confrontation and cross- examination of witnesses against him (citations omitted).” Here, the Court fails to see how the fact of the arrest of [FO]’s son qualifies as either “a corrupt attempt to affect the jury process,” or “well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial (citations omitted).” In any event…to the extent that the fact of [FO]’s son’s arrest may be considered an improper influence, the Court concludes that there is no showing here of prejudice, actual or implied, against defendant… 82 People v Brown, 48 NY2d 388 (1979). 86 The circumstance of the arrest of [FO]’s son does not support the claim that defendant has been prejudiced by improper outside influences upon [FO]. See, for example, People v Devison (citations omitted), which addressed the qualifications of a juror who discussed with other jurors deciding a drug case, the fact that juror had been robbed the night before. “The incident had nothing to do with the jury’s evaluation of the evidence, and the court’s instruction to the entire panel, that nothing outside the courtroom was evidence and that the case must be based solely on the evidence, was sufficient to address any possible prejudice, especially since the case did not involve robbery or any related crime (citations omitted).” Similarly here, the arrest of [FO]’s son on drug charges had nothing to do with the homicide case on which she was deliberating, nor on her evaluation of the evidence presented at the subject trial. The Court’s repeated instructions regarding the need to decide the case solely on the evidence heard or introduced in court, sufficiently addressed any prejudice to the defendant. The Court concludes, as a matter of law, under all the circumstances, that the affidavit of [FO] fails to support the claim that defendant was prejudiced by improper outside influences on her. The Court, therefore, denies the application to set aside the verdict on this ground without a hearing (A15). The trial court also cited People v Harrell,83 where the First Department affirmed a trial court’s denial of a CPL §330.30 motion based on a juror’s affidavit alleging juror misconduct. There, the Court denied an evidentiary hearing because “the required assiduous protection of the secrecy and sanctity of the jury’s deliberative 83 People v Harrell, 284 AD2d 248 (1st Dept 2001). 87 process counsels that such a hearing not be undertaken except in extraordinary circumstances and no such circumstances were present. The juror’s belated efforts to impeach the verdict did not warrant a hearing (A15-16).”84 b. The arrest of FO’s son was not an improper outside influence It is well settled that the trial judge “is vested with a broad discretion in ruling on the issue of prejudice” where a juror’s impartiality is questioned.85 And CPL §330.30 invests with the trial court “the discretion and post-trial fact finding powers to ascertain and determine whether the activity during jury deliberations constituted misconduct and whether the verdict should be set aside and a new trial ordered.”86 Under CPL §330.40(2)(e), a court may deny the motion without a hearing if the “(i) moving papers do not allege any ground constituting a legal basis for the motion; or (ii) the moving papers do not contain sworn allegations of all facts essential to support the motion.” The standard of review on appeal is “whether the trial court abused its discretion as a matter of law in refusing to set aside the jury’s verdict”87 without a hearing. Here, the trial court determined that FO’s affidavit was impermissible 84 Id. at 249. Citing People v Rodriguez, 71 NY2d 214, 218 n. 1 (1988). 85 People v Genovese, 10 NY2d 478, 482 (1962) (trial judge has broad discretion in ruling whether juror who had exposure to news media about case could remain seated as juror). 86 People v Maragh, 94 NY2d 569, 574 (2000); citing People v Testa, 61 NY2d 1008, 1009 (1985). See also, People v Rodriguez, 100 NY2d 30 (2003). 87 People v Testa, 61 NY2d at 1009 (“it cannot be said as a matter of law that the Trial Judge abused his discretion in denying defendant’s motion to set aside the verdict or order a new trial”). See also, People v Friedgood, 58 NY2d 467, 470 (1983); citing People v Brown, 56 NY2d 242, 246 (1982); People v Crimmins, 38 NY2d 407, 418-419 (1975). 88 impeachment into the jury’s verdict and, therefore, did not allege any ground for relief as a matter of law. As discussed below, this was a proper exercise of the trial court’s discretion and it should not be disturbed on appeal. Juror misconduct “can take many forms,” thus there is “no iron-clad rule.” Instead, in each case “the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered.”88 As a general rule, a jury verdict may not be impeached by an examination of the deliberative process of the jury.89 This rule reflects the reluctance of the courts to inquire into the process of jury deliberations and is designed to enforce the public policy of discouraging post-trial harassment of the jurors and to assure the finality of verdicts.90 As noted by the Court, “[w]ith regard to jury room deliberations, scarcely any verdict might remain unassailable if such statements were admissible.”91 This rule is subject to exception where there has been an improper, outside influence on the jury’s deliberation. In general, verdicts will be set aside only if they are the result of extraneous or outside influences affecting the jury’s deliberative process.92 A juror’s individual and internal mental processes and credibility 88 People v Maragh, 94 NY2d 569, 573 (2000); citing People v Brown, 48 NY2d 388, 394 (1979), People v Irizarry, 83 NY2d 557, 561 (1994). 89 People v Maragh, 94 NY2d 569 (2000). 90 See, People v DeLucia, 15 NY2d 294 (1967). 91 Id. at 279. 92 People v Brown, 48 NY2d 388 (1979); People v DeLucia, supra. 89 assessments are simply not subject to post-verdict impeachment.93 Without exception, advancing claims involving an individual juror’s internal thoughts not shared with the jury during deliberations constitutes impermissible impeachment of the verdict; which is sacrosanct. As noted by the United States Supreme Court, Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because, being personal, it is not accessible to other testimony. It gives the secret thought of one the power to disturb the expressed conclusions of twelve. Its tendency is to produce bad faith on the part of a minority; to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict.94 Both the trial court and the Appellate Division recognized that defendant’s application was an attempt to impeach the jury’s verdict and both courts properly rejected the claim. We urge the Court to similarly do so here. c. Background Facts: FO’s history as a juror vs. defendant’s portrayal of FO in his motion to set aside the verdict Attached to his motion defendant submitted a post-trial affidavit, dated February 8, 2010, from FO (A53). In it, FO explained that the purpose of her affidavit was to “explain why it is that I agreed to a verdict of guilty.” The affidavit is an account of FO’s personal experience as a juror in this case. In his motion, defendant selectively winnows portions of FO’s affidavit pertaining to her 93 People v Maragh, 94 NY2d 570. 94 Mattox v United States, 146 U.S. 140, 149 (1892), citing Perry v Bailey, 12 Kan 539, 545 (1874). 90 son’s arrest, which were not – even according to FO –the sole or even primary reason as to why she changed her vote. Instead, a review of FO’s entire affidavit reveals that her guilty vote was the result of the natural and expected cumulative pressures she perceived during jury deliberations from her fellow jurors and then her family (A54, A57, A64, A66, A67). Also, the affidavit alone does not portray a full picture of FO as a juror. FO was an opinionated and strident juror who on many occasions attempted to steer the Court to her will. Such was the nature of FO, that in its decision denying defendant’s motion to set aside the verdict, the trial court felt compelled to provide a background history about her: Turning to the claim that [FO]’s verdict was improperly affected by outside influences, some background is necessary. The record of all the in chambers voir dire of jurors makes clear that all the reports of alleged misconduct were initiated by [FO] herself. Several jurors mentioned [FO] by name as the source of various information, and [FO] herself offered information about the conduct of jurors. Clearly [FO] was acutely aware that if she had an issue which affected her conduct as a deliberating juror, that she would receive a meaningful response by the Court, at a time when a remedy could have been fashioned by the Court, if necessary. Despite her statements to the contrary, the ruling and instructions given by the Court following the delay resulting from the [FO/CD] revelations regarding [TB], acknowledged that some impropriety had occurred, and made clear that jurors must alert the Court to any inability to continue to deliberate. The timing of these instructions by the Court 91 (on the Friday before rendition of the verdict), coupled with the fact that [FO] was repeatedly willing to alert the Court of her claims of juror misconduct, fly in the face of [FO]’s current claim that the fact of her son’s arrest was improperly influencing her deliberations, and yet she made no attempt to bring this to the attention to the Court (A14). As provided below, the trial court’s assessment of FO is supported by the record. i. The disqualification of Juror Number Twelve When Juror Number Twelve (“JV”) was disqualified, it was FO that advised the foreperson that he may have made a statement regarding a predisposition to convict (A4134, A4137). On November 17th, after the medical examiner’s testimony, the jury foreperson advised that FO had heard from another juror that one of the other jurors, JV, had read a newspaper account of the trial (A4127). In response, the Court examined each juror individually in order to safeguard defendant’s right to a fair trial and to insure each juror’s impartiality (A4128). Notably, the allegation was not that JV had recently read an article about the case but, rather, that early on in the case, around the time of opening statements, JV may have made a comment about reading about the case in the newspaper and that his mind was already made up (A4149, A4154). The topic of JV’s alleged misconduct and purported bias resurfaced only after some of the alternate jurors became very disgruntled after FO informed them that from her “past history the alternates are dismissed when deliberations start and 92 you have no input with the deliberations whatsoever” (A4152). Indeed when individually questioned by the trial court, several jurors recalled hearing that JV may have read about the case in the newspaper early on during the trial95 but only one juror, Alternate Juror Number One, confirmed that JV may have commented that defendant was “probably guilty” (A4185). When questioned by the trial court, JV vociferously denied the accusation: “Never even close to that…I’ve never said anything like that, not even as a joke” (A4209), but the trial court nevertheless granted defendant’s application to disqualify JV (A4215). The prosecution objected and noted that the only person who indicated that JV had made up his mind was the first alternate juror who had found out the day previously, from FO, “that he would not be in a juror in this case” because he was an alternate (A4213). During this first individual juror inquiry, FO’s position amongst her fellow jurors became apparent. She monitored her fellow jurors and had even become involved in an altercation with the juror in question, JV. When individually interviewed, Juror Number Two (“TB”) stated: THE JUROR (TB): …It’s a comical group in there and actually funny things, comments, are made about witnesses. But nothing ever about – and we have a very strict juror in there who if she feels anybody is going to say anything she jumps right in. She’s actually fought with [JV] about this in the jury room one day. THE COURT: There is a juror then that’s reminding everybody the judge said don’t discuss the case? 95 TB (A4142); FO (A4149. A4154); Juror Number Eleven (A4176-7). 93 THE JUROR (TB): Constantly. THE COURT: Which juror is that? THE JUROR (TB): It’s [FO], the one who sits next to me. THE COURT: All right. THE JUROR (TB): She thought one day that she heard him, and this time we were talking in the jury room, and he was talking about the court officers something about who was carrying a gun. But she was sitting at the front of the jury room and she said something this particular day which caused a fight because they were not discussing the case. But that was the only other time. But, no, they joke around about witnesses or whatnot, but whenever she feels it’s starting to lead into she’s very quick to stop it (A4143-4). FO readily admitted the role that she assumed as well and did not deny her conflict with JV: THE JUROR (FO): In some instances because since I’ve taken this oath so seriously and I feel that if a conversation is getting a little bit too intense I will just say stop. I’ve had as a matter of fact with the person who supposedly said this that they read the newspaper. THE COURT: [JV]? THE JUROR (FO): Yes. I had a kind of a heated like knock it off, knock it off conversation with him downstairs in the central jury room one day and he got me a little nervous because he kind of like came toward me like to say I was not talking about the case. And I was like yes you were. I said stop it, I don’t want to hear it, now stop. So I was sitting away from him. We were sitting on the side where you go out and I was sitting toward the front. He like approached me. I was like stay away from me. Then it’s been fine since then (A4156-57). 94 Upon defendant’s motion, JV was removed as a juror over the prosecution’s objection based upon the alleged statements he made (A4271-2). ii. The disqualification of Juror Number Ten As the trial progressed, FO continued to monitor her fellow jurors and, on November 30, 2009, at the end of the defense’s case, FO reported that Juror Number Ten (“CL”) was acting strange, appeared to have slept through portions of the trial testimony and was ingesting pain killers (A5112, A5120). Again, the trial court addressed FO’s accusation by individually interviewing each juror. During FO’s interview, FO volunteered her opinion of CL and complained that “spending the last 7 or 8 weeks in her company had been very trying. And she seems to be very scattered at times.” She recalled that Juror Number Six had seen her “taking some heavy duty pain medication at times” and that she’d “dozed off a couple of times during testimony.” FO recalled that she’d heard CL snoring and “humming like singing a song” (A5123). When asked to elaborate on what she meant by “trying,” FO responded, THE JUROR: She has a very annoying personality. When we first came into the jury room, you know, not that she wasn’t trying to be friendly, she was going around asking people their names, what they did. We’re like you know, we really – we’re juror number 3, 9, 8 whatever. She was just making silly comments and kind of rambling. So she’ll sit in the corner sometimes and talk to herself. She’s just – she doesn’t seem to comprehend a lot. Like when we’re talking about a vacation or something she’ll ask a really stupid question 95 like what continent was that. We’re talking about the United States. We’re not talking about another continent. And she just doesn’t seem to pay attention to what anybody says. And she’s got like a grating type of a aggravating voice when she speaks to people (A5125). Ultimately, CL was disqualified, over defendant’s objection, after several fellow jurors confirmed that CL appeared to have slept through testimony (A5129, A5134), seemed confused about the witness testimony (A5128, A5139), and was taking prescription painkillers (A5128, A5140) during the trial testimony. iii. FO attempts to disqualify Juror Number Two The jury began deliberating on December 2, 2009. Based on the many requests for reinstruction on the jury charges, read-backs of witness testimony and review of the physical evidence, it became clear that the jury was taking its duty seriously. On Friday morning, December 11th, the Court received a phone call indicating that an alternate juror and a deliberating juror wished to address the Court (A5887). The Court refused to speak with either of the jurors over the phone and, instead, addressed the entire jury in the courtroom. The Court instructed all of the jurors in open court that if anyone, deliberating or alternate juror alike, wished to speak with the Court, they must do so via a written note to a court officer (A5901). Immediately after the instruction, the Court received two notes – one from FO and one from Alternate Juror Number Two (“CD”) (Court Exhibits 45 & 46; A5902, A7238-39). 96 The Court questioned FO first. According to FO, the night before, she and CD were walking to the parking lot together when CD told FO that one of the deliberating jurors stated, “oh don’t worry, it’s gonna be all over tomorrow.” FO admitted that she became “furious,” and that her reaction compelled CD to offer further explanation (A5907). As a result, both jurors met with each other later that evening to discuss the case and spoke about it further that night by phone. The next morning, they drove to court together and, during the drive in, called the Court (A5928). CD told FO that, earlier the previous morning, she was sitting in front of TB in the central jury room. At one point, when CD turned around toward TB, TB whispered to CD, “we’re getting somewhere” and told her that they were at “First Degree Manslaughter with nine to convict, two undecided and one no” (A5919). Also, later the same day, as the jurors were leaving the courthouse, TB said “[CD], it’s almost over, we have two more” (A5920). As a result, the trial court questioned TB: THE COURT: Okay. Did you make any statements at all to any other – anyone else about a particular vote, where you were at at a particular stage at all outside of the jury room? JUROR NUMBER TWO: I don’t understand. THE COURT: Let me be more specific. JUROR NUMBER TWO: Yeah. THE COURT: Was there any discussions at all that you had yesterday either before court or after court with an alternate juror about the stage of the deliberations, specifically, where you are and on what charge you were at? 97 JUROR NUMBER TWO: Yesterday morning I thing I was talking to [CD]. I felt bad that – I don’t recall exactly what I said. But I know I was saying, you know, I know it’s long and I know you and Lenny are having a really hard time, you’re locked in a room. I don’t believe – regarding the deliberations what’s going on in the room. But I believe to [CD] I was sympathetic with her position in the room. I can’t recall exactly what was said though. There was a lot going on yesterday. THE COURT: All right. Now. How about after court, was there any follow-up discussion in that regard with any alternates at all? JUROR NUMBER TWO: No, not at all (A5944). Defendant moved to have TB declared “grossly unqualified” because she disobeyed a directive of the Court when she spoke to CD about the status of the jury deliberations (A5958). The Court denied the application and held: What we have to do here in the Court’s view to keep it in this in the context we’re in right now, we have a situation here where we have 12 citizens who have been here upwards of 8 weeks, put their lives on hold for this period of time. During this period of time we’re left with two alternate jurors that have been coming and going for the last 8 days not privy to any aspect of the deliberations. And I credit what happened here, one of the deliberating jurors made a comment to one of the alternate jurors in essence to explain where they were at, what stage of deliberations they were at. Should the juror have done that? Absolutely not. Did it disregard the Court’s instructions? Yes. Is it in any way inherently prejudicial to the integrity of the proceedings? In the Court’s view absolutely not. In the Court’s view in looking at it practically what you have is a gesture on a personal level to try and give the two jurors, one of the two jurors which has been kept 98 in essence in an isolation chamber for 8 days, to inform them what was going on about the case. In no way shape or fashion does it indicate that that juror went into deliberations that had a state of mind that was anything but fair and impartial…To make a brief comment as indicated by the alternate juror concerning the stage in which they were at in the Court’s view at this stage does not warrant discharging this juror as being grossly unqualified (A5961-62). The trial court’s factual assessment was a sound one. It was not an abuse of discretion. d. FO’s post-verdict affidavit – a prohibited insight into a juror’s internal struggle during deliberations A review of FO’s affidavit reveals that, even before her son’s arrest, FO was emotionally worn from the “scorn” and “hostility” she received from her fellow jurors. But, her affidavit reveals that it was not the arrest of her grown son that was the pivotal moment, but rather when the trial court, for the first time, did not disqualify a juror that FO identified as troublesome. FO became disheartened when the Court did not do as she desired and, instead of deferring to the trial court’s exercise of discretion and following its instructions, as she previously swore to do, FO took it personally and became angry with and even judged the Court. After advising the Judge of what had been brought to my attention by [CD] with regard to what Juror #2 had told her on the previous evening, apparently no action was being taken to remove Juror #2, despite her deliberate violation of the Court’s instructions. Instead, 99 after being placed in a room and secluded for a very long period of time, I was sent back into the Jury Room that Friday afternoon to deliberate with the other 11 Jurors, including the Juror whose misconduct I had reported. From that point on, I was faced with additional scorn from the other Jurors and subjected to an even more hostile environment. At that point, I lost all my faith in the system and began to lose faith in the commitment I made to be a fair and honest Juror. I could not understand how the Judge did nothing about the Juror who had violated his specific instructions and the rules he continuously mandated us all to follow. At this point, I felt I had no chance to render a verdict I believed in, a fair verdict, a verdict from my belief that the defendant acted in self-defense. I could take the abuse from the other Jurors. I could deal with how they felt and acted towards me, but still felt that I could continue to hold firm in my belief of the defendant’s innocence until the system failed me and the Judge failed me. I could not help but feel that at this point the Judge failed the defendant too. The Judge allowing Juror #2 to continue participating and deliberating on this case was a travesty. It was wrong (A62-63). When the Court refused to disqualify TB and ordered the jury to resume deliberations, FO further explained that she did not want to continue but felt that she “didn’t have any choice in the matter” (A63). But FO continued and personally requested to see certain items in evidence and requested that portions of the testimony be read back to her (A63). When deliberations concluded for the night, again FO and CD spoke about what happened with TB. In her affidavit, FO explained her reaction: 100 I did not understand why the Judge would ask her to report that information and then not remove [TB]. It seemed to me that the Judge violated his own mandate of how we were to follow his orders. At this point, the only thing I could reason was that the rules didn’t matter. The truth didn’t matter. The innocence of the defendant didn’t matter. I felt the only thing that mattered was that everyone, including the Judge, wanted a conviction and it didn’t matter how this conviction was reached. Then, “another matter arose over the weekend which also had a tremendous personal impact on me” (A64). On Saturday afternoon (December 12th), FO learned that her son had been arrested in Suffolk County. On Sunday, FO and her husband appeared at her son’s arraignment and they bailed him out later that evening (A65). That night, FO recalled I received a tremendous amount of pressure from my family about having to go back to court as a Juror the following morning due to the fact that I was so stressed about what had been occurring during Jury deliberations, and now even more stressed about what had just happened to my son. While I really wanted to tell Judge Hinrichs about what had occurred with regard to my son and how it was affecting me, I didn’t. Knowing all too well how the Judge had dealt with the travesty of the prior Friday’s events and the disregard he had displayed for Juror #2’s violation of his orders, I felt it would make no difference if I was having my own personal issues. I felt that nothing mattered to him other than getting on with the trial. So I decided not to say anything to anyone, including the Judge. 101 So, FO continued to deliberate. As the day progressed, she recalled that her internal conflict increased as the “tremendous pressure from the other Jurors to agree to a guilty verdict” increased in addition to her own personal fear that there would be repercussions with respect to the criminal prosecution of her son because she was the sole holdout juror (A66). Even then FO continued to deliberate but later that afternoon, FO consented to permit her fellow jurors to reenact the type of chokehold used by defendant: Around mid-afternoon on Monday, December 14th, two of the Jurors were trying to have me place myself in the position of the victim in their hopes of having me understand what a hold of the type that was being described by some of the witnesses felt like. One of the Jurors came behind me and placed their arms around my neck and began to tighten their grip around my neck. I was panicked. I asked them to stop, which they did. But I was truly frightened, scared and hurt. At that point, when the Juror released their hold, I was totally worn down. I could no longer think clearly. I just had to end this and I told the foreman to “take your vote.” I rendered my vote under extreme duress and against my conscientiously held belief of the defendant’s innocence. I did this because I feared for myself and for my son. (A67) After providing the reasons for her change in vote, FO states in her affidavit, “I deeply and sincerely regret that I allowed these outside factors to impact me as they did” (A67). FO’s affidavit reveals that this is nothing more than a case of “juror’s remorse” and that the alleged “outside factors” impacted FO only and were never presented to the jury during its deliberations. 102 e. FO capitulated the majority and defendant’s motion is an impermissible attempt to impeach the jury verdict With rare exception, a jury verdict may not be impeached “by proof of the tenor of its deliberations.”96 Thus, the lower courts have consistently denied relief where a juror later claims that she or he capitulated and rendered a guilty verdict.97 Affidavits that substantiate “juror afterthought”98 are inadmissible.99 This is because juror compromise/acquiescence is not only accepted, but – as this Court has held – expected, as part of the jury’s deliberative process: Common experience indicates that at times articulate jurors may intimidate the inarticulate, the aggressive may unduly influence the docile. Some jurors may “throw in” when deliberations have reached an impasse. Others may attempt to compromise. Permitting jurors to testify regarding such occurrences would create chaos.100 96 People v Brown, 48 NY3d 388, 393. 97 People v Liguori, 149 AD2d 624 (2d Dept 1989) (post-verdict claim by juror that he voted guilty only because of pressure placed upon him by other jurors inadmissible); People v Maddox, 139 AD2d 598 (2d Dept 1988) (§330.30[2] motion properly denied without hearing where juror sought to impeach her verdict with claims that she was “personally attacked, harassed and intimidated by other members of the jury); People v Smalls, 112 AD2d 173 (2d Dept 1985) (post-verdict claim that juror had been pressured and badgered by other jurors improper). 98 People v Lehrman, 155 AD2d 693 (2d Dept 1989) (“Rather, it appears that this is a case of juror afterthought and the defendant failed to demonstrate that the alleged misconduct impaired his right to a fair trial [citations omitted]”). 99 People v Sprague, 217 NY 373 (1916) (Jurors cannot, by their affidavits averring misconduct outside of a jury room, attack or discredit a verdict which they have in fact rendered”). 100 People v DeLucia, 20 NY2d 275, 278 (1967). 103 As this Court has noted in the past, “[i]t is no doubt true…that in jury rooms, as well as all other deliberative bodies, some strong members are able to impress their will upon the weaker.”101 Until People v DeLucia,102 New York State’s common law prohibited jurors from impeaching the verdicts with statements or affidavits advancing such claims. But in 1966 in Parker v Gladden, the United States Supreme Court carved out an exception to this general rule.103 There, the Court overturned an Oregon case in which a bailiff, assigned to shepherd a sequestered jury, told them that petitioner was guilty and that if there were any error in finding him guilty, Oregon’s appellate courts would remedy the error. In reversing, the Supreme Court held that the bailiff had, “in a sense, become a witness against the defendant in contravention of his right ‘to be confronted with the witnesses against him’” as protected by the Sixth Amendment.104 Thus, when confronted with a case where it appeared that “several jurors not only went to the scene, but actually re-enacted the alleged crime,” this Court in DeLucia held: Our re-evaluation of the common-law rule that jurors may not impeach their own verdicts reveals that in the case of such inherently prejudicial “outside influences” on a jury as were here present, the violation of the 101 People v Boettcher, 69 NY2d 174 (1987); citing People v DeLucia, 20 NY2d at 278. 102 People v DeLucia, 20 NY2d 275 (1967). 103 Parker v Gladden, 385 U.S. 363 (1966). 104 People v DeLucia, 20 NY2d at 277. 104 defendant’s Sixth Amendment rights outweighs the policy reasons for the rule.105 But, the Court made clear that this exception did not “destroy” the rule and only narrowly applies in inherently prejudicial circumstances “where the investigation is not what happened in the jury room or why, but as to a fact (illegal view) which has always been considered to be a strong ground for setting aside a verdict.”106 FO’s affidavit is nothing more than her accounting what she experienced inside and outside of the jury room during deliberations and how she came to vote guilty. But there is nothing in FO’s affidavit that substantiates defendant’s claim that any outside influence infected the jury’s deliberative process. FO told no one about her son’s arrest. No “fact” infected the deliberated process of the jury and therefore the trial court properly determined that there was no proper basis to set aside the verdict. No one became a witness against defendant. Defendant improperly attempts to broaden the exception. But, the Court has applied the exception only where there was an inherently prejudicial injection of facts not presented at trial and not subject to defendant’s right to confront witnesses. Thus, the exception has been applied to cases involving unauthorized visits by jurors to areas or crime scenes,107 improper reenactments of crime or 105 Id. at 279. 106 Id. at 279, citing People v DeLucia and Montella, 15 NY2d 294, 296 (1965). 107 People v DeLucia, 20 NY2d 275 (1967) (unauthorized visit to scene by jurors where the reenacted the crime violated defendant’s Sixth Amendment right to confrontation as they became unsworn witnesses). 105 incidents at issue during trial,108 improper “tests” performed by jurors to verify testimony at issue,109 or where a juror supplements the trial evidence with their own professional opinion.110 All of these instances where the Court held that an improper outside influence occurred were rooted in the protection of defendant’s Sixth Amendment rights and designed to safeguard his right to confrontation when a juror becomes an unsworn witness against defendant. Since DeLucia, the Court has provided further guidance as to when juror misconduct constitutes reversible error under CPL §330.30. Reversible error exists where, “(1) juror’s conduct personal specialized assessments not within the common ken of juror experience and knowledge, (2) concerning a material issue in the case, and (3) communicat[e] that expert opinion to the rest of the jury panel with the force or private, untested truth as though it were evidence.”111 Viewed in this framework, it is clear that FO’s internal struggle with her fellow jurors, pressure from her family and fear for her son – all concerns that she kept to herself – did not constitute juror misconduct and was not an improper outside influence upon the jury’s deliberations. 108 People v Legister, 75 NY2d 832 (1990) (experiment conducted by two jurors in their hotel room designed to simulate the lighting conditions at the time of the crime and later shared with rest of the jury improper outside influence). 109 People v Brown, 48 NY2d 388 (juror who conducted test regarding ability to see defendant from vantage point in van violated defendant’s right by impermissibly bolstering credibility of sole identification eyewitness). 110 People v Maragh, 94 NY2d 569 (two nurse-jurors who shared professional expertise with jurors constituted improper outside influence). 111 People v Santi, 3 NY3d 234, 249 (2004), citing People v Maragh, 94 NY2d 569. 106 Also, the mere the fact that FO’s son was arrested during deliberations does not necessarily impute bias as alleged by defendant. In Smith v Phillips,112 the Supreme Court reversed a federal district court’s decision granting habeas relief to a defendant who claimed, via CPL §330.30(2) motion, that his due process right to a fair and impartial jury was violated because, during the trial, one of the jurors applied for a position as an Investigator at the District Attorney’s office. The Federal District Court imputed bias to the juror because “the average man in [the juror’s] position would believe the verdict of the jury would directly affect the evaluation of his job application.” The Supreme Court held that the Federal District Court improperly imputed bias in this case and noted, “due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable.”113 Also, defendant does not advance his position by selectively parsing favorable language from a federal circuit court case, Brookes v Dretke.114 This case is not directly on point, as argued by defendant, and upon closer inspection, the case is readily distinguishable. In Brookes, the Fifth Circuit Court of Appeals denied hearing on a grant of habeas corpus relief where a petitioner was released 112 Smith v Phillips, 455 U.S. 209 (1982). 113 Id. at 214. 114 Brookes v Dretke, 444 F3d 328, 332 (5th Cir 2006). 107 after the federal courts imputed bias to a juror who was arrested for unlawfully carrying a weapon on the first day of the sentencing phase of a capital murder prosecution. There, the juror was the father of two children and faced misdemeanor charges and the possibility of a felony weapons prosecution. Moreover, the matter of his arrest including his “name and this case [was] the head story at twelve, five, six and ten o’clock for four straight days.” The juror later described it as “one entire week of hell” where he suffered “unrelenting embarrassment.”115 In light of the events that the juror experienced, the Court held We do not suggest that being charged with unlawfully carrying a weapon alone disqualified [the juror] for service under state law…it is rather the sum of all factual circumstances surrounding this juror – in particular, the power of the District Attorney, and the timing and sequence of events – that compels this conclusion. FO’s situation simply does not rise to this level. In Brookes, it was the juror who feared prosecution from the District Attorney’s Office; here, it was the adult son of an already vacillating juror. Lastly, we address defendant’s claim that FO was improperly influenced because she could not be expected to “leave her kinship at the jury room door.” At the outset, we note that FO’s “child” was a thirty-two year old man who was 115 Id. at 435. 108 employed full time and represented by counsel during the arraignment. Also, her son’s arrest was not the first time that a member of FO’s immediately family was arrested during the trial. Just two days after openings statements, her husband was charged with harassment after a woman complained that he stalked her with his car. As a result, a court issued an order of protection and the Sherriff’s office went to FO’s residence and seized numerous guns possessed by both FO and her husband. Yet, even though her husband was facing prosecution and FO personally faced losing a vast amount of her personal property, FO repeatedly affirmed that she was able to remain a fair and impartial juror. Indeed, she took upon herself the job of policing the jury: “from the beginning of the trial, I took extremely seriously my obligations and privilege as a trial Juror to be fair and impartial and to render a verdict based solely on the evidence presented during the course of the trial” (A54). FO kept secret the arrests of her son and husband and it was not until defendant submitted his CPL §330.30 motion that the prosecution became aware of any possible conflict. Upon learning of the pending charges, the prosecution proactively moved for removal on both of these cases in order to avoid any air of impropriety. It was certainly not a concession of “severe prejudice” as alleged by the defense (DB, 89 fn 83). 109 The outside influence complained of – FO’s alleged fear of reprisal – was created within her own mind. She could have readily told the Court, but just as she chose not to disclose her husband’s upcoming criminal prosecution (perhaps due to her own personal embarrassment), FO refused to report her son’s arrest to the Court. Having made the decision to keep her affairs private, she cannot now use this personal decision to buttress a claim of juror’s remorse. This is exactly the type of juror’s mental process the courts have refused to allow as a basis to impeach a verdict. Significantly, after the verdict was announced, the jury was polled and FO unequivocally confirmed her guilty verdict. Her post-verdict claim that “I should have said “not guilty” when the jury was polled, but I didn’t. I was scared” further illustrate that this is a case of juror’s remorse and afterthought and an impermissible attempt by defendant to impeach the jury’s verdict, which should remain sacrosanct. The judgment of conviction should therefore be affirmed. 110 2. The trial court did not abuse its discretion when it denied defendant’s application to disqualify TB as “grossly unqualified” under CPL §270.35(1) CPL §270.35(1) provides, “[i]f at any time after the trial jury has been sworn and before the rendition of its verdict…the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case or has engaged in misconduct of a substantial nature…the court must discharge the juror.” Defendant claims that two events occurred at trial that warranted the disqualification of TB as a juror: (1) her unauthorized comments to CD indicating the status of the jury’s deliberation; and (2) an “anonymous tip” that, after the trial, TB was to be assigned to the Suffolk County Police Department. As discussed below, neither of these events warranted her disqualification. a. Factual background On December 11th, FO spearheaded an unsuccessful attempt to unseat TB based upon her communications with CD. After interviewing both FO and CD, as well as questioning TB, the trial court denied defendant’s application to disqualify TB and determined that her “brief comment” to CD was a “gesture on a personal level” to assure CD, who had been “kept in essence in an isolation chamber for 8 days” (A5961-2), and that “in no way shape or fashion does it indicate that that 111 juror went into deliberations that had a state of mind that was anything but fair and impartial” (A5962). The following Monday, December 14th, the defense made another application to discharge TB. This time, the defense contended that it received an “anonymous tip” that TB would start working for the Suffolk County Police Department after the trial and this rendered her grossly unqualified. According to defendant, “someone called my office and informed me that [TB] currently works for the county executive’s office…but that immediately after this trial is over…she already has a position available at the Suffolk County Police Department.” Defendant claimed prejudice because this was not disclosed during voir dire (A5995-600). The trial court did not interview TB individually, instead it summarily denied the application because these were already information that were known at the time of jury selection: “[TB], have either you or close friend or relative worked in law enforcement” Answer: “Prospective juror number 9: I work for the Department of Civil Service and in my job I move every three months within many of the departments. I worked at police headquarters.” Goes on. “And I currently work for the County consecutive [sic] Steve Levy.” “The Court: Is there anything about your work with the Civil Service department that at times has brought you to police headquarters; is there anything about that that would prevent you from being a fair and impartial juror to both sides in this case?” 112 “Answer: No” (A6002). The trial court denied defendant’s application and noted, She disclosed in the questioning that she worked at police headquarters, she moves every three months within many of the departments, she’s been here two months plus a week…If she was reassigned, went to the police department in a civil service capacity in the Court’s view it would not be inconsistent with any of her prior answers that she gave during the jury selection process” (A6003). The record hardly supports the portrayal of TB as a juror who blatantly disregarded the trial court’s instructions and prejudiced this case. b. The trial court’s refusal to disqualify TB under CPL §270.35(1) was a sound exercise of discretion The standard for disqualifying a sworn juror as grossly unqualified under CPL §270.35 is satisfied only “when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict.”116 Each case must be evaluated “on its unique facts to determine whether a particular juror must be disqualified.”117 In People v Buford, the Court created a “framework by which trial courts should evaluate sworn jurors who, for some reason during the trial, may ‘possess a state of mind which would prevent the rendering of an impartial verdict.’”118 Thus, the Buford Court held that, “in reaching its conclusion, the trial court must question each allegedly unqualified 116 People v Buford, 69 NY2d 290, 298 (1987). 117 Id. 118 People v Mejias, 21 NY3d 73 (2013). 113 juror individually in camera in the presence of the attorneys and defendant.”119 But where there is no indication, except for a defendant’s speculation, that “the juror’s impartiality was in doubt or that the juror had committed any misconduct,”120 such a hearing is not necessary. Indeed, in Buford, the Court recognized that certain juror irregularities may be or such a trivial character that they could be deemed plain and undisputed and therefore does not trigger the requirement for an inquiry.121 i. TB’s attempt to console CD was not substantial misconduct The trial court did not abuse its discretion when it refused to discharge TB after it assessed her misconduct of speaking with CD. The misconduct was not substantial but rather an attempt by TB to console CD in light of her difficult and frustrating position as an alternate juror. “[N]ot every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically.”122 The trial court properly characterized the nature of TB’s conduct. Clearly, CD was feeling the strain of being held captive in a room with alternate juror number one, LH, who even the trial court noted as being a “jovial character” and an “expressive person” (A5296). CD’s discomfort with LH’s personality was evident even before deliberations based on 119 People v Buford, 69 NY2d at 298. 120 Id. at 79. 121 People v Buford, 69 NY2d at 299 n. 4. 122 People v Brown, 48 NY2d at 394; see, People v Clark, 81 NY2d 913, 914 (1993). 114 the tenor of her comments about LH (A5293-96) during a jury inquiry. Notably, during her interview regarding TB’s statement, she described her efforts to submit her note without alerting LH, how she was uncomfortable about his comments during deliberations and her trepidation of returning to the room with the other alternate (“I don’t have to go back in the room with [LH] now, do I?”) (A5913, A5925). Further, CD readily accepted the trial court’s offer to separate her from LH for the remainder of the trial (A5981-2). Thus, the trial court properly ruled that although TB should not have spoken to CD, her conduct did not disqualify her as a juror because her motivations were personal and geared toward sympathy and not indicative of her ability to remain a fair and impartial juror. The communication was not material to any issue at the trial and unlikely to affect the jury’s deliberations. And since the comments were made to an alternate juror, there was no risk that TB’s statement to CD would have colored her views. Having seen the jurors interact and having been able to assess their individual personalities, the trial court was in the best situation to assess TB’s intent and qualifications to remain seated as a juror In his brief, defendant argues that TB’s bias can “be inferred from the fact that, in addition to ignoring the court’s instructions, she repeatedly lied to the court to stay on the jury” (DB, 95). Notably, defendant does not provide any record cites to support his unsubstantiated accusation that TB “repeatedly lied to the court to 115 stay on the jury.” Instead, he presents the claim in order to compare TB’s allegedly improper behavior with the defendant in U.S. v Daugerdas.123 A review of Daugerdas reveals that the comparison is far-fetched and not persuasive. In Daugerdas, a post-conviction investigation into one of the jurors revealed that a seated juror had perjured herself during voir dire to such an extent that the Federal District Court characterized her lies as “breathtaking.”124 In that case, the juror lied about “her educational, professional and personal background.”125 She also concealed her criminal history, history of alcohol abuse, and the fact that although she claimed that she was a stay-at-home wife, she was actually an attorney whose license had been revoked.126 The Court noted that this juror made a “calculated, criminal decision to get on the jury” and that [s]uch stratagem undermines the integrity of the jury system, the fair administration of justice and is an affront to this Court.”127 TB’s well-intentioned comments to CD hardly qualify as the calculated and criminal behavior indicated in Daugerdas. Here, the trial court properly conducted the inquiry as required by People v Buford, and based upon the inquiry, the Court concluded, on the record, that TB was not grossly unqualified.128 The trial court’s decision, which was a sound exercise of its 123 United States v Daugerdas, 867 FSupp2d 445 (SDNY 2012). 124 Id. at 468. 125 Id. at 452. 126 Id. at 452-9. 127 Id. at 457. 128 People v Buford, 69 NY2d at 299. 116 discretion rendered after it performed the proper inquiry, was proper in all respects and should therefore be affirmed. ii. TB’s transfer to the police department as a civil servant did not render her grossly unqualified In order to remove a juror under CPL §270.35(1), a court must determine that a juror is “grossly unqualified” based upon “facts unknown at the time of the selection of the jury.” Upon defendant’s second attempt to discharge TB, the trial court reread a section of TB’s voir dire where she readily admitted that she worked for the Civil Service Department and had previously worked for the Suffolk County Police Department, and that she transferred offices every three months. Accordingly, the Court held that, even assuming if defendant’s unverified anonymous tip was true (A6002), the information was not inconsistent with the information she provided during jury selection and therefore did not render her grossly unqualified. Also, the Court denied defendant’s application to disqualify TB because of her alleged failure to disclose that since the trial had commenced, TB had been transferred to the Suffolk County Police Department. The Court noted that it never instructed the jury to advise the Court of “changes in [their] personal lives” (A6005) and that TB’s failure to advise the Court of a transfer, which she previously advised the Court occurred every three months, did not implicate her 117 impartiality. After the trial court denied the application, defense counsel capitulated and did not request any further action by the Court (A6005). The defense argues that the trial court erred when it did not decided that “the change in TB’s employment status rendered her grossly unqualified and biased as a matter of fact or law.” According to defendant, TB now had “every reason to curry favor with her new colleagues.” The claim is purely speculative. Even if the allegations in the anonymous tip were true, they were not inconsistent with her answers during voir dire. TB never hid from either party her prior employment with the police department. And candidly advised the parties that she was transferred between departments every three months. Also, there was no evidence that she was even to be employed by the police department. As a civil servant, she was assigned to that department on a temporary basis with the expectation she would be reassigned to a different bureau months later. Given TB’s temporary status, defendant’s speculative claims are invalid and it was not an abuse of discretion for the trial court to deny defendant’s motion. Lastly, any claim that the trial court erred by failing to conduct a Buford inquiry, though not directly raised in defendant’s brief, is not reviewable by the Court since after the trial court’s denial of defendant’s application, defendant never 118 asked for TB to be interviewed or suggested any additional avenue of inquiry.129 Instead, defense counsel capitulated and did not request any further action by the Court. As argued above, defendant received a trial by a fair and impartial jury. His jury was not a docile one. Nevertheless, at any suggestion of alleged impropriety, the trial court acted swiftly and deliberately. On numerous occasions he questioned the jurors, instructed them to decide the case on the evidence and addressed all of defendant’s allegations with due consideration. This was not a case where the trial court was unaware of its duty to exercise tis discretion in guaranteeing defendant’s right to a fair and impartial jury. In each instance, the Court weighed the circumstances of the allegation against the prevailing legal authority and rendered its decisions, which we submit were proper in all respects. The judgment of conviction should therefore be affirmed. 129 People v Hicks, 6 NY3d 737 (2005) (Court unable to address claim that trial court failed to conduct Buford inquiry where defendant did not protest about absence or scope of inquiry because no question of law preserved). 119 POINT THREE THE PROSECUTOR’S SUMMATION WAS PROPER IN ALL RESPECTS AND DID NOT VIOLATE DEFENDANT’S FIFTH AMENDMENT RIGHTS OR DEPRIVE HIM OF HIS RIGHT TO A FAIR TRIAL. Defendant contends that the prosecutor violated the Fifth Amendment when she allegedly commented on his right to remain silent. The claim, which is unpreserved for this Court’s review, is without merit. When the selectively parsed comments are placed in the context of what the prosecutor actually said at trial, it is quite clear that the comments were fair comment in response to defense counsel’s attempts to improperly interject her own testimony about defendant’s state of mind. Defendant’s remaining claims regarding the summation are also unpreserved and without merit. Nevertheless, given the overwhelming evidence of defendant’s guilt, any error, if it occurred, was harmless. 1. The summations In summation, defendant’s attorney reviewed the eyewitness testimony of the people who observed defendant place Andrew Reister in a chokehold. She recalled how the witnesses could not recall specific details of certain simultaneously occurring events – as in who was where, what music was playing, etc. She argued to the jury, 120 MS. KEDIA: Why is this guy [defendant] who is been pushed off a table, who is panicked, who is afraid, who is in the middle of a struggle, why would he be expected hear it? Think about the testimony of each of the witnesses who says that they intervened. Each of them seems to be unsure of what anyone else because they’re only focused on what they’re doing (A5400). Notably, defense counsel did not recount to the jury that the witnesses had testified about what they were focused on – somehow loosening defendant’s relentless death grip on Andrew Reister.130 Throughout the trial defendant attempted to minimize his conduct by asserting that he accidentally killed Andrew Reister because he was in a panic. Defense counsel continued this theme in her summation when she argued that defendant was “[j]ust frozen” because “he was in a panic” and “scared” (A5451). She declared that “Tony did not mean to hurt anyone. He didn’t have the desire whatsoever to hurt anyone. He was just reacting in fear, in panic” (A5342). She further explained why defendant, allegedly the victim of an unprovoked assault, didn’t remain at the scene to report the crime: “Tony wasn’t trying to flee. He didn’t know Mr. Reister was seriously hurt. He left because he was told to leave and he was panicked” (A5417). 130 Kyle Baugher: “I don’t remember. I don’t know. I mean, I don’t know. I came from the left side. I was focused on getting the grip off where I was” (A1530). Mike Pacella: “I don’t recall. It was because I was basically just focused on trying to get this man to stop choking Andrew” (A2756). 121 She argued that defendant was not guilty of any intentional crimes and, at worst, her client was guilty of criminal negligence: MS. KEDIA: The worst thing he did, ladies and gentlemen, the worst thing he did is he failed to perceive that risk, he failed to realize it. It’s not that he intended to hurt Mr. Reister or intended to kill him or consciously disregard what he was doing. The worst thing that Tony did is out of fear and out of panic after being pushed off a table by this big guy (A5320). During her closing argument, the prosecutor directly addressed defense counsel’s inappropriate attempts to testify about defendant’s state of mind: MS. MERRIFIELD: And as far as his demeanor, going back to what the defense wants to claim in this case, he is panicked, he’s in fear. Who, ladies and gentlemen, testified to that? No one. One of the most important things I ask you to follow the law on is you can only judge this case by the evidence presented on the witness stand and introduced in evidence in this case. That’s the only place you can get evidence from. You can’t speculate. You can’t imagine. You can’t think, oh, maybe he was this, maybe he was that. No. Because if that were the point why do we bother calling 30 witnesses if we’re going to be able to plug in pieces of evidence that are missing. The evidence has to come from the trial. It has to come from the witness stand, not this podium. Neither I nor defense counsel can tell you what he’s thinking. It has to be from the witness stand. As I recall yesterday, defense counsel must have said it ten times, but I don’t recall anyone testifying to him being in fear or panic. And that’s the only place you can get that evidence from if you are going think and consider it. It isn’t in this case. So I ask you stay true to the judge’s instructions and 122 follow the law on this point. If it’s not in evidence you can’t consider it (A5528-29). Also, the prosecutor addressed defense counsel’s attempts to minimize defendant’s mens rea: MS. MERRIFIELD: You’re going to be asked to consider whether or not this defendant had an actually belief that he was in fear that someone attacked him and that he was permitted to use the amount of force that he used. Did he have an actual belief? We submit there was no evidence of that. There is no evidence that this defendant felt panicked, there is no evidence that this defendant felt fear. Nothing from the witness stand. Nothing in the record for that. Nothing. Just speculation on defense counsel Kedia’s part. That’s it. You can’t speculate (A5560). At both instances, defense counsel never objected to the prosecutor’s comments. Instead, it wasn’t until after the prosecution completed its summation and the jury was excused that the defense asked for a curative instruction. Notably, defense counsel never objected to the statements, moved to strike or move for a mistrial with respect to any of the prosecution’s comments during summation – she merely asked for a further jury instruction: MS. KEDIA: I would ask for an instruction regarding the jury’s determination regarding defendant’s state of mind, your Honor. And maybe a more detailed instruction, I’ll try to think of language for the Court, about the defendant not testifying. Ms. Merrifield repeatedly stated that there is no evidence in the case regarding the defendant’s state of mind which is allusion to the fact that he didn’t testify. Obviously, he would be 123 the only person who would have the ability to testify regarding his own state of mind (A5622). The Court reserved decision until the defense provided the Court with its proposed instruction for the jury but noted: I would indicate, however, that there was in the Court’s view it did appear to be fair comments on the summation yesterday about the defendant’s state of mind. Ms. Merrifield never specifically said that the defendant did not testify in the Court’s view. However, it was fair comment based upon the statements that were made yesterday about the emotional state of Mr. Oddone during the incident referring to the, you know, the fear and panic at that particular moment (A5622-23). After the break, defendant requested the Court to instruct the jury that “defendant need not testify regarding – on his own behalf regarding his state of mind. A defendant’s state of mind maybe inferred from his actions and from the surrounding circumstances” (A5624). The trial court denied defendant’s request noting that it intended to charge the jury to “use their common sense and inference from circumstances,” as well as the additional “justification charge based on defense request even though the defendant has not testified” (A5624). 2. Defendant’s Fifth Amendment claim is unpreserved Pursuant to CPL §470.05(2), the Court has limited powers of review. “To create and preserve a question of law amenable to appellate review, a defendant in a criminal case normally must raise that issue before the court of original 124 jurisdiction.”131 All of the prosecutor’s remarks that defendant claims violated his Fifth Amendment rights are unreviewable because defendant did not challenge them in a timely and specific manner.132 With respect to the prosecutor’s allegedly improper comments regarding defendant’s right to not testify, there was no objection by defendant to the statements when they occurred. A review of the record reveals that defendant’s claim is not reviewable because they went without “objection at all.”133 And even if defense counsel’s attempt to procure further jury instructions can be construed as an objection, it was untimely. Also, an objection that occurs after the prosecutor finishes summation does not preserve the issue for this Court’s review.134 In any event, the prosecutor’s comments were proper and, as discussed further below, 131 People v Cona, 49 NY2d 26 (1976) (where no objection made to trial court’s charge dealing with the application of the accomplice corroboration rule, defendants failed to preserve question of law for review). 132 People v Romero, 7 NY3d 911 (2006) (“Most of the remarks identified by defendant on appeal are unreviewable because they went unchallenged at trial, were met with unspecified, general objections, or were raised for the first time in a post-summations mistrial motion [citations omitted]”). 133 People v Williams, 46 NY2d 1070 (1979) (”The other prosecutorial summation statements to which defendant has drawn our attention went without objection at all. Consequently they are not preserved for our review [citations omitted]”). 134 People v Lavalle, 3 NY3d 88, 115 (2004) (where Court held that post-summation motion for mistrial by defense counsel claiming that prosecutor had attempted to improperly “inflame the jury” during summation was unpreserved). See also, People v Harris, 98 NY2d 452, 492 (2002) (defendant’s post-summation motion to set aside verdict did not cure his failure to register specific objection that prosecutor’s summation comments violated his constitutional rights against compelled self-incrimination). 125 defendant’s unpreserved claims are without merit. Absent proper preservation, the issue is not reviewable by this Court.135 3. Defendant’s unpreserved Fifth Amendment claim is without merit In this appeal, defendant selectively parses the prosecutor’s comments from her summation and claims that the prosecutor commented on defendant’s failure to testify. As provided above, the record refutes the claim. The prosecutor’s statements were fair response to defendant’s attempt to interject testimony of his state of mind via defense counsel during her summation. Thus, the Appellate Division’s ruling that “the challenged comments were either fair comment on the evidence, responsive to arguments and theories presented by the defense summation, or harmless error (citations omitted)”136 was proper in all respects. The majority of the prosecutor’s comments during summation did not exceed the bounds of permissible rhetoric because a prosecutor is entitled to “comment upon every pertinent matter of fact bearing upon the questions the jury ha[s] to decide” and is afforded the “widest latitude by way of comment, denunciation 135 People v Anonymous, 96 NY2d 839 (2001) (“We note the point raised by defendant as to the prosecutor’s improper comments during the summation, but are unable to reach it. We do not condone the summation and base our affirmance solely on defendant’s failure to preserve the issue [citations omitted]”). 136 People v Oddone, 89 AD3d at 870. 126 or appeal in advocating [his or her] cause.”137 A prosecutor’s summation cannot be considered in a vacuum but must be assessed against the realities of a trial. Specifically, they must be evaluated against the background of the trial evidence and defense counsel’s closing argument.138 When the prosecutor’s comments are viewed in their entirety and within the context of defense counsel’s own statements during summations, it is clear that the comments were not an impermissible reference to defendant’s failure to testify. Instead, it was a proper attempt to redirect the jury to the trial evidence and not defense counsel’s own unsubstantiated opinions about defendant’s state of mind. When defense counsel attempted to convince the jury that defendant “was afraid,” “panicked,” acting “out of fear,” “that he did not mean to hurt anyone, “wasn’t trying to flee,” and “didn’t know Mr. Reister was seriously hurt,” defense counsel impermissibly strayed outside the four corners of the trial evidence. This was not a case where the prosecutor commented on the defendant’s failure to produce witnesses139 or explicitly commented on defendant’s invocation 137 People v Ashwal, 39 NY2d 105, 109 (1976). See also, People v Halm, 81 NY2d 819 (1993) (comments when viewed in the context of entire trial, fell within latitude of attorneys in advocating their cause). 138 People v Halm, 81 NY2d at 821 (the prosecutor’s closing statement must be evaluated in light of the defense’s summation, which put into issue the victim’s character and justified the People’s response). 139 People v Mirenda, 23 NY2d 439, 457 (1969) (error where prosecutor’s comments include statements highlighting that defendant failed to produce “a single solitary witness” and commented that that there was “not a dribble of evidence on behalf of defense”). 127 of his right to remain silent.140 Instead, the prosecutor attempted to deflect the defense’s inappropriate comments and redirected the jury to strictly adhere to the trial court’s instructions when it would instruct them “judge this case by the evidence presented on the witness stand and introduced into evidence in this case” (A5528). Viewed in context, the prosecutor’s comments were proper and did not violate defendant’s right to remain silent. 4. Defendant’s remaining claims are also unpreserved and without merit Defendant further argues that other statements made by the prosecutor during summation deprived him of his right to a fair trial. Citing People v Riback,141 defendant argues that the “prosecutor crossed the line when she repeatedly violated the court’s instructions by making inflammatory arguments for conviction based on the trial evidence that the trial court excluded, even after the defense objections were sustained” (DB, p 102, fn 91). People v Riback, which was a child sex abuse case involving a doctor (defendant) who allegedly abused fourteen boys over a five-year span of time, is readily distinguishable. There, the trial court erred when it permitted an expert to define “pedophilia” and “the central characteristics” of a “pedophile.”142 The trial court’s evidentiary error became 140 People v Hetenyi, 304 N.Y. 80, 87-88 (1952) (error where prosecutor stated “You’ll never know, nor I’ll never know, not as long as he stands on his constitutional rights”). 141 People v Riback, 13 NY3d 416 (2009). 142 Id. 421. 128 compounded when this testimony “became a springboard for the prosecutor to venture well beyond the evidence and the bounds of fair comment during his summation.”143 Additionally, the prosecutor elicited testimony that “suggested to the jurors that defendant had sexually abused dozens of victims and that these crimes had not been charged only because many parents were understandably unwilling to subject their children to the rigors of trial.”144 The prosecutor in Riback also commented on other charges that were previously dismissed against defendant but nevertheless “invited the jury to conclude that the boy’s grand jury testimony recounted sexual abuse and that his lapse of memory showed how hard it was for children to acknowledge or disclose what defendant had done to them.”145 The prosecutor also impermissibly vouched for the credibility of his witnesses and diverted the jury from its obligation to consider defendant’s guilt or innocence on each individual charge by arguing “If you believe one child, you can believe all.” Further inappropriate comments included “Congratulations. They found four patients he didn’t molest” and “[g]et enough lawyers involved and jury consultants to make sure they pick the perfect jury.”146 In comparison to the misconduct that occurred in Riback, the alleged 143 Id. 144 Id. at 422. 145 Id. 146 Id. at 422-23. 129 conduct of the prosecutor in this case is hardly “shameless” and “inflammatory” as alleged by defendant. Defendant’s claim relates to the prosecutor’s comments that Andrew Reister’s organ donation as an “act of kindness” is the only claim that is preserved for appellate review because defense counsel immediately objected to the comment during summation (A5533) and asked for a curative instruction afterwards (A5621-22). Contrary to defendant’s argument on appeal, this isolated comment was not targeted to inflame the jury or invoke its sympathies. Instead, it was a direct response to the defense summation. An essential part of the defense was the depiction of Andrew Reister as large (viewed as a threat and first aggressor) and obese (physically predisposed to death by freak pressure to the carotid artery). But because his organs were harvested at death, there was never a definitive record of Andrew Reister’s weight when he died. One of the medical records placed Reister at 280 pounds but this was contradicted by most of the trial evidence. But Reister’s size became an issue hotly argued by the defense. In response, the prosecutor stated that “[n]obody’s trying to make this individual smaller than he was, but because of this fact, because of this act of kindness, they try to use it against the prosecution” (A5532-33). The Court immediately sustained the defense objection but, notably, the defense did not further object when the prosecutor continued, “They try to use it against the case because this 130 man’s tissues are not there any longer or bones are not there any longer. And it’s simply not the case. He weighed approximately 245 pounds” (A5534). Even if the “act of kindness” comment was better left unsaid, it was hardly the type of commentary that deprived defendant of a fair trial. Defendant also takes umbrage with the prosecutor’s statement that Andrew Reister was “a 40 year old married man with children.” This claim is unpreserved. Although defendant objected when the comment was made, it was not specific and no request for a curative instruction or mistrial was made as a result of the comment.147 During summations, defendant attempted to portray the homicide as a bar brawl gone bad and claimed that Andrew Reister’s death was “unquestionably a bar incident, a bar fight gone badly” (A5305). In turn, the prosecutor responded that the trial evidence actually revealed that “Mr. Reister accidentally fell over him, because logic and common sense tells you he’s not jumping on him, on the bench, this is a 40 year old married man with children.” The Court sustained the objection but defendant did not further object when the prosecutor immediately continued, “This is a 40 year old who has a full-time job, a family and a part-time job. He’s looking to brawl?” (A5565). These two isolated remarks were not inflammatory and designed to appeal to the jury’s sympathy. Instead, it was fair comment on 147 People v Tonge, 93 NY2d 838 (1999) (“Defense counsel made only a general objection to the prosecutor’s remark at summation; a party’s failure to specific the basis for a general objection renders the argument unpreserved for the Court’s review [citations omitted]”). See also, People v Tardbania, 72 NY2d 852 (1988). 131 defense counsel’s portrayal of Andrew Reister as an aggressive bar brawler who inexplicably and unjustifiably attacked the defendant. Defendant’s claim that the prosecutor “shamelessly departed from the trial evidence in impugning the motives of one of the two defense eyewitnesses” is also unpreserved as there was only a general objection made after the following allegedly improper comment: MS. MERRIFIELD: One witness here Kira Leader tells you it all happened table number 3. Completely wrong. Shamir Cohen tells you okay it’s at table 1. And what did she keep saying? “I’m just here helping Kira.”148 I’m just here helping Kira because Kira messed up, Kira got it complete wrong, Kira had it all happening at table 3. She keeps saying I’m just here to help Kira – MS. KEDIA: Objection. THE COURT: Overruled. I’ll allow it (A5612). Viewed in the context of what occurred at trial, this is hardly the shameless impugning of Shamir Cohen’s motives as advanced by defendant. Instead, it was fair comment into her bias and credibility – both proper topics for summation. 148 The cross-examination of Shamir Cohen by the prosecutor: Q: So you never came forward, though; is that right? A: No. Q: And how is it that you’re here today? A: Um, actually, my – Kira, she had asked me if I would want to testify. Q: So you said okay. A. Um, you know. Q: Yes or no? A: Yes, yes. Q: Okay. So you want to help Kira out? A: I wanted to testify and tell what happened if they needed some eyewitnesses, of course yes (A5070-71). 132 Lastly, we address defendant’s claim that the prosecutor departed from the trial evidence by analogizing Andrew Reister’s death to an intentional drowning. During summation, the prosecutor likened choking a motionless man for three minutes to intentionally holding a lifeless person in water for the same time frame.149 And although the prosecutor never attempted to argue that Andrew Reister died of asphyxiation or drowning, the defense now claims that the prosecutor distorted the record in order to inflame the jury. First, the claim is not reviewable by the Court because defendant failed to object in each instance. Second, the remarks were a direct response to defense counsel’s unsubstantiated claim that “Tony was not realizing what was happening …not realizing that he might be holding someone who is not moving” (A5392). Viewed in context, the statement is clearly an analogy and not to be mistaken as an attempt to mislead the jury to the cause of Andrew Reister’s death. 149 According to the defense, there were four instances where the prosecutor advanced this argument – each time, without objection: (1) “[John Cato] couldn’t stand there. It’s like, ladies and gentlemen, someone standing at the beach and you watching someone drowning in the ocean, you’re looking, where is the lifeguard, where are the lifeguards, and you go, oh, my God, I can’t take it. I’ve got to do something”; (2) “If you held a lifeless unconscious person’s head under water for two to three minutes would any of you have doubt as to what somebody was doing to them? Two to three minutes. Somebody who is immobile, held under water or in a choke” (A5599); (3) “As I just said you would not hold someone’s head under water for two to three minutes when they were unconscious. Why would you hold them in a choke and say gee I didn’t know” (A5600); and (3) “Again, ladies and gentlemen, if you took an unconscious person and held their head under water for two to three minutes do we have any doubt what they meant to do?” (A5616). 133 5. Any error was harmless In People v Gillyard, the Court held that an error may be found harmless where “the proof of defendant’s guilt, without reference to the error, is overwhelming and there is no “significant probability…that the jury would have acquitted the defendant had it not been for the error.”150 This case involved several eyewitnesses who observed defendant place an unconscious Andrew Reister in a chokehold for up to three minutes. Given their eyewitness testimony alone, the evidence of defendant’s guilt for the crime of Manslaughter in the First Degree was overwhelming. 150 People v Gillyard, 13 NY3d 351, 356 (2009); citing People v Crimmins, 36 NY2d 230, 241- 24 (1975). 134 POINT FOUR THE TRIAL COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR A JURY INSTRUCTION ON INTOXICATION. 1. Introduction According to the defense, “[t]wo experienced police officers independently documented in official post-arrest police records that Tony was intoxicated. This evidence, standing alone, establishes that Tony was entitled to an intoxication charge” (citations to record omitted, DB p 11). We disagree. 2. The rule of law Although intoxication is not a defense, evidence of it may be offered to negate an element of a crime charged, such as intent.151 In People v Perry, this Court held that “a charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element on that basis.”152 Where the issue on appeal is whether intoxication should have been charged to the jury, the evidence must be viewed in the light most favorable to the defendant.”153 151 Penal Law §15.25. 152 People v Perry, 62 NY2d 849, 850 (1984) (notwithstanding defendant’s statements that he was aware of his actions, intoxication jury charge warranted where there was “undisputed evidence” of defendant’s intoxication at the time of the crime). 153 People v Farnsworth, 65 NY2d 734, 735 (2011). 135 A defendant may be entitled to the charge “if the record contains evidence of the recent use of intoxicants of such nature or quantity to support the inference that their ingestion was sufficient to affect the defendant’s ability to form the necessary criminal intent.”154 And although this has been described as a “relatively low threshold,”155 the Court has consistently held that this requires more than a bare assertion that defendant was intoxicated.156 Thus, in People v Gaines, the Court affirmed the denial of an intoxication instruction where the evidence of intoxication included admissions made by defendant that he hit the victim and “[he] had a couple of drinks and [he] just got ripped off or whatever.” Also, one of the eyewitnesses described defendant as appearing “high” and there existed a police officer’s comments that defendant had glassy eyes and alcohol on his breath. Nevertheless the Court affirmed the denial of the intoxication instruction and held that defendant failed to “meet this relatively low threshold” because, [d]efendant’s evidence lacked the requisite details tending to corroborate his claim of intoxication, such as the number of drinks, the period of time during which they were consumed, the lapse of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific 154 People v Sirico, 17 NY3d 744, 745 (2011). 155 People v Gaines, 83 NY2d 925 (1994). 156 Id. at 927. 136 impact of the alcohol upon his behavior or mental state.157 Likewise, most recently, in People v Sirico, the Court affirmed a judgment of conviction where defendant claimed that the trial court improperly denied him an intoxication instruction.158 Sirico was a second degree murder prosecution where defendant, an experienced archery hunter, shot an arrow from his compound bow towards his neighbor’s yard and fatally struck and killed the victim. In Sirico, defendant testified that he “consumed two large glasses (approximately 12-15 ounces each) of Southern Comfort and ingested a Xanax pill.”159 Again, the Court held that there was insufficient evidence to warrant the charge. In this case because, although defendant testified to consuming large amounts of intoxicants, his bare assertions, “standing alone,” are insufficient.160 Thus, it is well settled that inconclusive, uncorroborated evidence of intoxication is insufficient to obtain, and does not warrant, an intoxication charge. Defendant’s reliance on the Second Department’s decision in People v Smith,161 is misplaced and does not support his position that defendant need not “show that he was in a stupor or incoherent” (DB, p 104). Smith is readily distinguishable. There, the prosecution’s witness, the victim’s mother, testified that she saw 157 Id. at 926. 158 People v Sirico, 17 NY 3d at 745. 159 Id. At 746 (Jones, J. dissenting). 160 Id. at 745. 161 People v Smith, 43 AD3d 475 (2d Dept 2007). 137 defendant drinking that day. Also, another prosecution witness testified that defendant appeared to be “under the influence of some kind of alcohol” and had seen defendant drink a whole cup of vodka from a bottle that he purchased earlier that morning. After defendant’s arrest, one of the detectives recalled that although defendant did not appear intoxicated, the detective could tell that he had been drinking because he could smell the alcohol.162 In contrast, there is no evidence in this case that defendant was seen drinking alcohol or demonstrated any signs of intoxication. 3. No evidence existed that defendant consumed alcohol or appeared intoxicated Defendant’s claims entitlement to the intoxication charge based upon two documents contained in the police paperwork: (1) the Prisoner Activity Log where the arresting officer described defendant as “intoxicated”; and (2) the Suicide Prevention Log where another officer marked that defendant “appeared under the influence of alcohol or drugs.” Defendant also claims further support existed because a witness may have observed him playing a drinking game. Also was the objective fact that he was dancing on the tables at a bar. A review of the entire record, however, reveals that there was insufficient evidence to support any inference that defendant was so intoxicated as to be unable form the requisite criminal intent. 162 Id. 138 First, the eyewitness testimony of defendant shortly before the homicide revealed that defendant did not demonstrate any common traits of intoxication. Larisa Bekmetova, the first person to dance with defendant on a table, recalled that during the several minutes that they danced together, defendant did not appear drunk. He was not stumbling and did not lose balance as he danced. At one point, defendant ordered her to dance for one of his companions. Although rude, his speech was not slurred. She also recalled that she did not smell any odor of alcohol on him (A2105). Natalya Yeremina, the one who was dancing with defendant when approached by Andrew Reister, recalled that the table that they were dancing on was approximately five feet long and two feet wide and that defendant did not once stumble or fall (A2311-15, A2683, A2706). But, the most devastating evidence to weaken defendant’s argument for an intoxication charge came from his own witness, Shamir Cohen. When asked by defense counsel whether defendant appeared intoxicated, she responded: Um, in my honest opinion, he didn’t seem to be, like, intoxicated. He seemed to have been somebody, like, that might have had a drink or two who was feeling slightly buzzed who was just enjoying themselves, maybe not even had a drink, I don’t know. Like, he didn’t at all seem like he was unstable or – you know – you know – wasted basically…He just seemed to be really enjoying himself. He didn’t seem to be out of sorts or anything like that” (A5058-59). 139 Lastly, there was no trial evidence that defendant was playing drinking games before he killed Andrew Reister. Instead, Paul Fallo, the deejay, testified that he observed a group of people playing a drinking game but could not say for certain that it was defendant and his friends (A2912, A2980, A2983). Second, the evidence of defendant’s conduct immediately after the crime, during his arrest and while in custody, reveal that defendant’s conduct was quite purposeful and not consistent with a person who could not form the necessary criminal intent. Sami Abbes, the taxi cab driver who picked defendant up from the Publick House within minutes after the homicide, recalled that defendant appeared alert and coherent when he provided Abbes with directions (A1992). When the cab was stopped by Police Officer Rodecker, defendant recalled that defendant’s demeanor abruptly changed – how defendant went from “hurried” and “nervous” to acting “cool and normal” when he interacted with Officer Rodecker (A1984, A2014-15). When asked by the prosecutor whether defendant appeared intoxicated, Abbes, whose livelihood mainly depended on driving drunk people home from clubs and bars and had much prior experience with intoxicated people, responded “No, he know what he do” (A1990-91). Police Officer Rodecker also testified that defendant was not intoxicated (A1647-50). Instead, he appeared to be in “generally a good mood” and his demeanor was “calm and seemed like he was out having a good time” (A1629-31). 140 When the officer asked about the disheveled state of defendant’s appearance, he attempted to minimize his sartorial disarray and claimed that he “was dragged out of the bar [and] thrown into a cab.” “You know how it is in the Publick House,” defendant explained, “you get dirty there” (A1633). It was only after defendant heard Officer Rodecker radio the scene that defendant’s general good mood changed and defendant blurted that it was “self- defense.” In that moment, defendant’s demeanor “changed from being happy to I need to change my story now” (A1774-75). As for his notation in the Prisoner Activity Log, Officer Rodecker unequivocally testified that he wrote “intoxicated” even though he did not believe defendant to be so. He explained that it was “inaccurate” and an “error” (A1650-51). Once in custody, other officers who interacted with defendant also recalled that defendant did not appear intoxicated. Detective Sergeant Lamison spoke with defendant for approximately ten minutes at 3:10 a.m., and he recalled that defendant appeared normal and was not uncoordinated or stumbling in any way. Defendant was seated on a small, round metal stool but he was able to stand up and sit back down with ease even though his hands were cuffed behind his back. Detective Lamison did not detect the smell of alcohol on defendant’s breath, slurred speech or any diminished physical activity (A830, A846-7, A981). Sergeant Schuct interacted with defendant at 3:46 a.m. and also observed him 141 sitting upright on a small stool with his hands cuffed behind his back. Defendant’s balance was steady and he did not stumble, fall off the stool or appear drowsy. Instead, he was “calm,” “lucid” and “very observant” (A758-59). The clearest evidence of defendant’s sobriety and lack of intoxication was the surveillance videotape of defendant during his custody at the Southampton Village Police Department (People’s Exhibit No. 15; A1563). The recording which started at 1:49 a.m., depicted defendant from the moment he entered the police station to when he was ultimately placed in his holding cell. It revealed that defendant’s conduct was purposeful and that he did not possess any of the physical characteristics consistent with one who is intoxicated. In the video, defendant can be seen sitting on a small round stool with his hands handcuffed behind his back. He is not unsteady in any way. Also, one can observe defendant walking as directed and purposefully interacting with police officers at the station. Lastly, defendant’s claim that the mere act of dancing on tables with strangers constituted evidence of inebriation is untenable. Dancing on top of a table with attractive young ladies in a nightclub during the summer in the Hamptons is hardly conclusive evidence of intoxication. Indeed, at trial, the women dancing on the tables testified to the contrary. Larisa Bekmetova recalled that although she was not intoxicated and not drinking, she danced on the table (A2079). Natalya Yeremina also did not consume alcohol at all that night and she 142 was the one seen in the pictures dancing on the table with defendant (People’s Exhibit No. 53; A1001, A2314, A6139). Merel Beleen admitted she was drinking that night but was not intoxicated when she danced on the tables. Indeed the very act of dancing on a small table indicates coordination and sobriety. 4. No question of law exists warranting the Court’s review Based upon the review of the evidence as a whole, the trial court denied defendant’s request for a jury charge of intoxication and noted “the fact that the words intoxication or intoxicated may appear at certain police forms taken in a vacuum without other evidence supporting the request on the intoxication issue…[is] insufficient evidence of intoxication to warrant a charge” (A5233-34). Likewise, the Appellate Division correctly held that, The County Court did not err in refusing to give an intoxication charge to the jury. Viewing the evidence in the light most favorable to the defendant, we find that there was insufficient evidence presented regarding the quantity of liquor consumed by the defendant and its consequent effects to warrant a charge on intoxication.163 Because there was no evidence from any of the witnesses who observed defendant on the night of the crime that he appeared intoxicated and because there was no evidence that defendant ingested any intoxicants to support the inference that defendant was intoxicated, the trial court properly denied defendant the jury charge of intoxication. Even when viewing the evidence in a light most favorable 163 People v Oddone, 89 AD3d at 870. 143 to the defense, the trial court correctly denied his request to charge intoxication to the jury and the Appellate Division properly affirmed. An intoxication charge was simply not warranted in this case. No question of law exists. Defendant’s judgment of conviction should be affirmed. CONCLUSION THE JUDGMENT OF CONVICTION AND DECISION OF THE APPELLATE DIVISION SHOULD BE AFFIRMED. DATED: August 8, 2013 Riverhead, New York Respectfully submitted, BY: 144 THOMAS J. SPOTA District Attorney of Suffolk County Attorney forJ~.t}spclR4ent / ) ~)f. A E.OH Assistant District Attorney OfCounse! Criminal Courts Building 200 Center Drive Riverhead, New York 11901 (631) 852-2500 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- A~THomODDONE, Defendant-Appellant. ------------------------------------------------------------------)( CERTIFICATION Court of Appeals Case ~0.APL-2013-00080 App. Div. Case No, 2010-04080 Suffolk Co. Indictment ~o. 2168-08 I, ANNE E. OH, ESQ., an attorney admitted to practice in the State of New York, hereby certifies that the digital filing of Respondent's Brief required by sections 500.2, 500.l2[h] and 500.l4[g] of the rules are in PDF format and are identical to the filed original printed material. DATED: August 8, 2013 Riverhead, New York //7"/ .,,,~•.//' // ./' /' / / /",/ ~ ~- f\NNEE.OH Assistant District Attorney Of Counsel to THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Respondent 145