The People, Respondent,v.Anthony Oddone, Appellant.BriefN.Y.November 14, 2013APL-2013-00080 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, against ANTHONY ODDONE, Defendant-Appellant. >> >> To Be Argued By: Marc Wolinsky Time Requested: 30 Minutes REPLY BRIEF FOR DEFENDANT-APPELLANT ANTHONY ODDONE WACHTELL, LIPTON, ROSEN & KATZ 51 West 52nd Street New York, New York 10019 212-403-1000 (phone) 212-403-2000 (facsimile) Pro Bono Counsel for Defendant-Appellant Anthony Oddone SARITA KEDIA LAW OFFICES, P.C. Five East 22nd Street, Suite 7B New York, New York 10010 212-681-0202 (phone) 212-614-0202 (facsimile) Attorneys for Defendant-Appellant Anthony Oddone Date Completed: August 23, 2013 -i- TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................... 1 REPLY STATEMENT OF FACTS .......................................................................... 7 THE PROSECUTION’S STATEMENT OF FACTS CANNOT BE RELIED UPON. .................................................................................................. 7 A. Reister attacked Tony. Reister was the initial aggressor. .......................... 8 B. Tony could not have held an unconscious Reister for upwards of 4 minutes. ..................................................................................................... 10 C. The physical injuries that Reister suffered were not significant and do not establish that Tony used excessive force. ...................................... 15 D. Reister suffered from a host of preexisting medical conditions that made his heart prone to go into a fatal arrhythmia. .................................. 17 E. Tony was in a state of fear and panic because of Reister’s aggressive attack. ...................................................................................... 20 ARGUMENT ........................................................................................................... 21 POINT I THE TRIAL COURT COMMITTED THREE LEGAL ERRORS THAT GROSSLY DISTORTED THE EVIDENCE ON A CENTRAL ISSUE IN THE CASE AND DENIED TONY A FAIR TRIAL .................................. 21 A. The trial court erred when it refused to strike Dr. Wilson’s unsupported and unsupportable opinion testimony. Without that evidence, the proof against Tony was legally insufficient. ...................... 22 1. The proper remedy for the erroneous admission of Dr. Wilson’s opinion testimony is dismissal of the indictment. ............... 23 -ii- 2. The challenge to Dr. Wilson’s testimony was preserved. .................. 26 3. Dr. Wilson’s opinions flunked Frye and Parker. ............................... 31 B. The trial court erroneously refused to let Dr. Penrod testify. ................... 34 1. Nothing in the law limits expert psychological testimony to the issue of eyewitness identification of a person. ............................. 34 2. The evidence established that Dr. Penrod should have been permitted to testify. ............................................................................. 35 C. The trial court violated Tony’s right to present a defense when it refused to permit defense counsel to use Flynn’s insurance interview to refresh her recollection. ........................................................ 38 1. The defense was entitled to use Flynn’s prior recorded statement to refresh her recollection. .................................................. 38 2. A party may use a witness’ prior statement to refresh its own witness’ recollection when the party is surprised by the witness’ testimony. ....................................................................... 40 3. The Court should avoid an interpretation of CPL 60.35 that violates the state and federal constitutions. ........................................ 41 POINT II THE VERDICT SHOULD BE SET ASIDE BECAUSE TONY WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY ..................................................................... 45 A. Tony’s right to an impartial jury was violated by the participation of F.O., a juror who admits that she was biased. ...................................... 45 1. The mid-deliberation arrest of F.O.’s son was an “outside influence” that rendered her biased. ................................................... 45 -iii- 2. The defense only had to establish that F.O. was biased. It did not have to prove that F.O. changed her vote only because of that bias. ............................................................................ 48 B. Tony’s rights were violated by the participation of T.B. ......................... 50 POINT III REVERSAL IS REQUIRED BECAUSE THE ADA ENGAGED IN REPEATED, SERIOUS MISCONDUCT IN HER SUMMATION .......................................... 52 A. The prosecution’s repeated violation of Tony’s Fifth Amendment right is subject to review by this Court. .................................................... 52 B. The prosecution’s attempt to excuse its violation of Tony’s Fifth Amendment right is meritless. .................................................................. 53 C. The violation of Tony’s Fifth Amendment right cannot be dismissed as harmless error. ..................................................................... 55 POINT IV IN THEIR OFFICIAL REPORTS, TWO POLICE OFFICERS WROTE THAT TONY WAS INTOXICATED. TONY WAS ENTITLED TO AN INTOXICATION CHARGE ON THE BASIS OF THIS EVIDENCE ALONE ................................................................ 56 CONCLUSION ........................................................................................................ 60 -iv- TABLE OF AUTHORITIES Cases Brooks v. Dretke, 418 F.3d 430 (5th Cir. 2005), rehearing en banc denied, 444 F.3d 328 (5th Cir. 2006) ............................................. 46 n. 89, 49 nn.93 & 94 Chambers v. Mississippi, 410 U.S. 284 (1973) .................................................................................... 44 n.87 Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416 (1st Dep’t 2008) .................................................................. 33 n.68 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ....................................................................... passim Hoffler v. Bezio, 2013 WL 4016924 (2d Cir. Aug. 8, 2013) .................................................. 23 n.50 Holmes v. South Carolina, 547 U.S. 319 (2006) .................................................................................... 37 n.74 Hunley v. Godinez, 975 F.2d 316 (7th Cir. 1992) ....................................................................... 46 n.89 Jackson, Oddone, et al. v. Horn, 27 Misc. 3d 463 (N.Y. Co. 2010) .................................................................... 7 n.6 Lopato v. Kinney Rent-A-Car, Inc., 73 A.D.2d 565 (1st Dep’t 1979) .................................................................. 27 n.55 Nappi v. Gerdts, 103 A.D.2d 737 (2d Dep’t 1984) ................................................................ 39 n.78 Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) .............................................................. 5 n.4, 32 n.66, 33, 34 Pauling v. Orentreich Med. Grp., 14 A.D.3d 357 (1st Dep’t 2005) .................................................................. 33 n.68 People v. Abraham, 29 A.D.3d 333 (1st Dep’t 2006) .................................................................. 39 n.79 People v. Andrews, 267 A.D.2d 1071 (4th Dep’t 1999) ............................................................. 39 n.79 -v- People v. Arthur, 22 N.Y.2d 325 (1968) .................................................................................. 43 n.85 People v. Baez, 118 A.D.2d 507 (1st Dep’t 1986) .................................................................... 9 n.9 People v. Brannon, 58 A.D.2d 34 (4th Dep’t 1977) ................................................................... 27 n.55 People v. Brown, 48 N.Y.2d 388 (1979) .................................................................................. 45 n.88 People v. Carrion, 277 A.D.2d 480 (3d Dep’t 2000) ................................................................ 39 n.79 People v. Cona, 49 N.Y.2d 26 (1979) .................................................................................... 53 n.97 People v. Crimmins, 36 N.Y.2d 230 (1975) .......................................................................................... 55 People v. Cronin, 60 N.Y.2d 430 (1983) .......................................................... 22 n.48, 35, 37 & n.76 People v. D’Alvia, 171 A.D.2d 96 (2d Dep’t 1991) .................................................................. 46 n.89 People v. Dawson, 173 A.D.2d 262 (1st Dep’t 1991) ........................................................................ 58 People v. De Tore, 34 N.Y.2d 199 (1974) ................................................................................ 57 n.100 People v. Giammarino, 105 A.D.2d 802 (2d Dep’t 1984) .................................................................... 9 n.9 People v. Gittens, 165 A.D.2d 750 (1st Dep’t 1990) .................................................. 39 n.79, 42 n.84 People v. Gray, 86 N.Y.2d 10 (1995) ................................................................................. 27-28, 29 People v. Harris, 98 N.Y.2d 452 (2002) .................................................................................. 53 n.97 -vi- People v. Kent, 19 N.Y.3d 290 (2012) .................................................................................. 25 n.51 People v. Landy, 59 N.Y.2d 369 (1983) .................................................................................. 27 n.55 People v. LaValle, 3 N.Y.3d 88 (2004) ...................................................................................... 53 n.97 People v. Layman, 28 A.D.2d 558 (3d Dep’t 2001) .................................................................. 39 n.79 People v. LeGrand, 8 N.Y.3d 449 (2007) ...................................................................................... 34, 35 People v. Lopez, 200 A.D.2d 767 (2d Dep’t 1994) ................................................................ 55 n.99 People v. McLean, 15 N.Y.3d 117 (2010) .................................................................................. 43 n.85 People v. McLucas, 15 N.Y.2d 167 (1965) .................................................................................. 43 n.85 People v. Medina, 53 N.Y.2d 951 (1981) .................................................................................. 53 n.96 People v. Patterson, 21 A.D.2d 356 (1st Dep’t 1964) .................................................................. 2, 3, 25 People v. Perry, 176 A.D.2d 901 (2d Dep’t 1991) ................................................................ 2, 3, 25 People v. Perry, 61 N.Y.2d 849 (1984) .......................................................................................... 57 People v. Riback, 13 N.Y.3d 416 (2009) .................................................................................. 55 n.99 People v. Rodriguez, 76 N.Y.2d 918 (1990) ................................................................................ 59 n.104 People v. Romero, 7 N.Y.3d 911 (2006) .................................................................................... 53 n.97 -vii- People v. Santiago, 17 N.Y.3d 661 (2011) ................................................................................... 35, 36 People v. Sirico, 17 N.Y.3d 744 (2011) ................................................................................ 59 n.103 People v. Smith, 43 A.D.3d 475 (2d Dep’t 2007) .......................................................................... 58 People v. Thomas, 50 N.Y.2d 467 (1980) .................................................................................. 43 n.85 People v. Tolbert, 198 A.D.2d 132 (1st Dep’t 1993) ................................................................ 53 n.96 People v. Turner, 141 A.D.2d 878 (2d Dep’t 1988) .............................................................. 57 n.100 People v. Wesley, 76 N.Y.2d 555 (1990) .......................................................................................... 10 People v. Wesley, 83 N.Y.2d 417 (1994) ........................................................................ 5 n.4, 33 n.66 People v. Williams, 155 A.D.2d 394 (1st Dep’t 1989) ................................................................ 53 n.96 People v. Williams, 46 N.Y.2d 1070 (1979) ................................................................................ 53 n.97 People v. Williams, 81 N.Y.2d 303 (1993) .......................................................................................... 44 People v. Wong, 81 N.Y.2d 600 (1993) .................................................................................. 25 n.51 People v. Young, 7 N.Y.3d 40 (2006) ........................................................................ 35 n.72, 37 n.76 Remmer v. United States, 350 U.S. 377 (1956) .................................................................................... 46 n.89 Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012) ........................................................................ 30 n.64 -viii- Smith v. Phillips, 455 U.S. 209 (1982) ........................................................................ 47, 49 n.93, 50 Stokes v. People, 53 N.Y. 164 (1873) ...................................................................................... 46 n.89 United States v. Torres, 128 F.3d 38 (2d Cir. 1997) .......................................................................... 46 n.89 Constitutional Provisions N.Y. Const. art. I, § 2 .............................................................................................. 46 U.S. Const. amend. V ......................................................................................... 52-55 U.S. Const. amend. VI ............................................................................................ 46 Statutes N.Y. CPL 60.35 .................................................................................................. 39-43 N.Y. CPL 330.30 ............................................................................ 30 n.64, 45-48, 50 N.Y. CPL 440.10 ............................................................................................. 30 n.64 N.Y. CPL 470.05 .................................................................................. 26-29, 53 n.97 Other Authorities Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009) ................. 32 n.65 National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward (2009) ........................................ 47, 62, 63 Peter Preiser, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 11A, CPL §§ 60.35, 470.05 ................................................. 26 n.54, 41 n.83 Prince, Richardson on Evidence §§ 6-222, 6-423, 6-424, 7-308, 7-315 (Richard T. Farrell, ed., 11th ed. 2008) ............................................ 33, 34 & n.69, ........................................................................................ 39 n.79, 40 & nn.80 & 81 5 Robert A. Barker & Vincent C. Alexander, New York Practice Series, Evidence in New York State and Federal Courts, §§ 1:4, 6:80 n.12 (2010) ..................................................... 27 n.55, 39 nn.77 & 78 INTRODUCTION Nothing in the prosecution’s 144-page opposition can change one critical and undeniable fact: Tony Oddone acted in self-defense. He was attacked without provocation in a crowded bar by a 6’ 4” tall, 250-pound bouncer, a man who outweighed Tony by 70 pounds and was 4 inches taller. Tony was entitled to defend himself from Reister’s attack. The restraint hold that Tony used to subdue Reister was justified. The law is clear that, in these circumstances, the prosecution had to prove beyond a reasonable doubt that Reister did not die from the initial force that Tony justifiably used in self-defense — even assuming Tony used excessive force later in their encounter. It had to prove that Reister’s death was caused by that later excessive force and that excessive force alone. The prosecution had to prove beyond a reasonable doubt that Reister’s heart was not put into a fatal arrhythmia by the initial restraint hold Tony justifiably used to protect himself. It had to prove that Reister was not already gone when a bystander supposedly yelled, “Dude, you’re fucking killing him.” The prosecution’s extensive brief does not even mention, let alone contest, this fundamental legal principle. It offers no answer because there is no answer. -2- Applying this principle in People v. Patterson, the First Department dismissed the indictment as a matter of law where the defendant fired seven shots at his assailant, five of which hit the assailant in the face and head, because there was no proof that the “excessive shots, if they were excessive, were fatal in effect.”1 In People v. Perry, the Second Department dismissed the indictment as a matter of law where the defendant blasted an intruder with a shotgun and then fired several additional blasts into the intruder while he was lying prone on the ground because there was no “evidence in the record as to whether or not the first shot could have killed the deceased.”2 In each of these cases, the defendant can be said to have intended to kill his assailant. But intent alone was not enough to sustain the convictions. Intent was not the “only issue at trial.” Pros. Br. 6. The prosecution had to prove more. It had to prove that the initial aggressor was not already mortally wounded when the “murder” was supposedly committed. The cases thus recognize that when an individual is attacked and justifiably uses force in self-defense, the fact that the defendant later uses excessive force — even deadly force — cannot 1 21 A.D.2d 356, 360 (1st Dep’t 1964) (per Breitel, J.P.). 2 176 A.D.2d 901, 902 (2d Dep’t 1991). -3- support a criminal conviction. In the words of both Patterson and Perry, “This is not the stuff upon which a man’s liberty should be taken from him.”3 So too, the evidence here is not the stuff upon which Tony should be incarcerated for one more day, let alone for the remainder of the seventeen years he is serving. For just as the prosecution failed as a matter of law in Patterson and Perry, it failed here. The evidence the prosecution discusses endlessly in its brief — that Reister fell to the floor “like a tree,” that Reister was “lifeless on the ground,” “unconscious and incapacitated by defendant’s initial headlock,” that bystanders supposedly “begged” Tony to “let him go, he’s out” — does not bolster its case. That evidence undercuts its case. That evidence establishes that Reister’s heart was already in a fatal arrhythmia when Tony supposedly (but implausibly) continued his hold for “up to 4 minutes.” The admissible medical evidence — the testimony of each and every competent medical expert and the published authorities upon which they relied — confirms this. It establishes beyond any question that the initial, justified force that Tony used was alone sufficient to induce a fatal arrhythmia. It establishes that a fatal arrhythmia can be induced in no more than 10 to 15 seconds in a healthy individual, something that Tony had no way of knowing. And it establishes that in 3 Patterson, 21 A.D.2d at 361; Perry, 176 A.D.2d at 902. -4- an individual with preexisting conditions like Reister — a history of increasingly frequent irregular heartbeats, severe sleep apnea, a history of fainting, high blood pressure, borderline obesity and an enlarged heart evidenced by deformed heart muscle cells — the risk of the heart failing is magnified. That, too, is something that Tony had no way of knowing. In short, the admissible medical evidence establishes that Reister’s heart was prone to, could and did go into a fatal arrhythmia before Tony supposedly crossed the line from applying justifiable to excessive force in self-defense. The only evidence the prosecution offered to rebut this consistent evidence was the testimony of Dr. Wilson. But Dr. Wilson repeatedly disclaimed any expertise in cardiology. As the prosecution admits, Dr. Wilson’s critical testimony — that Reister’s carotid sinus nerve must have been compressed for 2 to 3 minutes and, by implication, that Tony’s initial, justified use of force was not the cause of Reister’s death — was based on nothing more than his personal experience, and, to quote Dr. Wilson, “[p]erhaps seeing something on television.” A3849:11-18. His opinions were not, the prosecution concedes, “drawn from ‘any kind of medical or scientific literature.’” Pros. Br. 50. Those concessions dispose of the central evidentiary issue presented to the Court. The essence of Frye is that an expert’s opinion can never be admitted if it is based on his or her experience alone. Rather, to be admissible, an expert’s -5- opinion must be based on principles that are generally accepted in the expert’s field. Frye “‘emphasizes counting scientists’ votes.’”4 Dr. Wilson’s “vote” stands alone against those of his entire profession. His opinions should never have been admitted. And without his testimony, the prosecution’s entire case fails. The prosecution’s claim, made without citation to any authority, that the Frye issue was not preserved was rejected by the trial court and the Second Department. They did so for good reason. The prosecution had the burden of establishing the admissibility of Dr. Wilson’s testimony. It did not do so. When Dr. Wilson admitted on cross-examination that his opinions were his and his alone, the defense moved to strike. The trial court indicated that it was not inclined to grant the motion and went on to rule: “I’ll let you make that [motion] more fully if you wish at a later time.” A3918:21-23 (emphasis added). Thus, the defense made a timely motion, the trial court set the ground rules for any further adjudication of the Frye issue, and the defense followed those rules, making a second oral and then a written motion to exclude Dr. Wilson’s testimony while he was still on the stand.5 The issue was preserved at trial in exactly the way the trial judge directed. 4 Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006) (quoting People v. Wesley, 83 N.Y.2d 417, 439 (1994) (Kaye, Ch. J., concurring)). 5 A4274:8-4279:7 (colloquy); A616-643 (motion). -6- Equally frivolous is the claim that the Second Department concluded that there was sufficient evidence to sustain the conviction without Dr. Wilson’s testimony. Pros. Br. 45. The Second Department never reached the question. It had no occasion to because, wrongly, it did not even consider the challenge to the admissibility of Dr. Wilson’s “2 to 3 minute” causation claim. CA3. The admission of Dr. Wilson’s testimony was not the only error that infected this trial. As detailed in our opening brief, and as further discussed below, nearly every phase of this politicized case — which began with a demonstration outside the courthouse attended by 150-plus uniformed officers and District Attorney Spota himself the day Tony was arraigned, included testimony from an experienced officer that he made an “error” when he wrote that Tony was “intoxicated” in an official police report, and ended with a courtroom packed full of uniformed officers that burst into applause when an indefensible, near- maximum sentence was imposed — was tainted by other critical errors. Each of these errors deprived Tony of the fair trial that the New York and federal constitutions guarantee him. By the time this appeal is heard, Tony will have served 5 years and 3 months in prison, a term well in excess of the 4 year maximum penalty for -7- criminally negligent homicide.6 The indictment should be dismissed, and the Court should free an innocent man whose legitimate act of self-defense resulted in a death that was a tragic accident, not a crime. REPLY STATEMENT OF FACTS THE PROSECUTION’S STATEMENT OF FACTS CANNOT BE RELIED UPON. This appeal presents important issues of law. That said, a number of the factual assertions made by the prosecution in its opposition brief are simply wrong and must be corrected. First and foremost is the prosecution’s use of variations of the word “choke” which appear 41 times in the prosecution’s brief. Repeating the word does not make it true. The prosecution knows better. Dr. Wilson admitted that Reister was not choked to death.7 Dr. Wilson, Dr. Spitz and Dr. Kassotis all agreed that Reister’s death was caused by the stimulation of the carotid sinus nerve 6 Almost 20 months of that time was spent in protective custody at Rikers because the Suffolk County Sheriff could not keep Tony safe in a Suffolk County jail. For 8 of those 20 months, Tony was illegally held in solitary confinement for his own protection, locked in his cell 23 hours a day. See Jackson, Oddone, et al. v. Horn, 27 Misc. 3d 463 (N.Y. Co. 2010). 7 A3846:22-3847:4 (“Q. Now, in this particular case we’re not talking about death by asphyxiation; is that right? A. That’s correct. Q. So we’re not talking about choking in the ordinary sense of the word that you would say lay people would use the word choking, right? A. That’s correct. Not in the sense of causing an asphyxia.”). -8- resulting from the compression of Reister’s neck.8 This is not, as the prosecution claims, a defense “theory.” Pros. Br. 3 n.5. This is a medical fact, affirmed under oath by the prosecution’s witness. The “choked to death” fiction is just one of the misstatements in the prosecution’s brief. Five more deserve special comment: A. Reister attacked Tony. Reister was the initial aggressor. The prosecution never brings itself to openly claim that Tony was the initial aggressor or openly dispute that Reister was the first to use physical force. But it tries to make these facts appear doubtful, falsely suggesting that the circumstances surrounding the initiation of Reister’s attack were “hotly contested during the trial” and that the defense claim at trial that “Reister violently and aggressively attacked defendant” was “[a]gainst the tide of the overwhelming trial evidence.” Pros. Br. 13. That assertion is not merely wrong, it is ludicrous. Indisputably, Reister, a 6’4” man who outweighed Tony by 70 pounds, attacked Tony. Reister threw himself at Tony with so much force that when he launched Tony onto the adjoining banquette, Reister’s massive frame followed, landing squarely on top of 8 A3651:11-3652:15 (Dr. Wilson); A4632:20-21, 4635:23-4636:16, 4731:13-21, 4758:11- 20 (Dr. Spitz); A4973:7-4974:7 (Dr. Kassotis). -9- Tony. This evidence came out of the mouths of the prosecution’s own witnesses, as well as from the testimony of the two eyewitnesses called by the defense.9 Indeed, in the Appellate Division, the prosecution essentially conceded that Tony had the right to defend himself at the outset of the encounter: “Had [Tony] released the hold when both men were on the floor,” the prosecution said, his self-defense claim “might have merit.” Pros. App. Div. Br. 49; see also Pros. App. Div. Br. 41 (“[I]t was defendant’s conduct after Reister fell to the ground that evinced his intent to cause serious physical injury.”); Opening Br. 19- 20 & n.13. Its focus was on what happened after Reister and Tony fell to the floor. Thus, regardless of what Reister’s subjective intentions may have been,10 Tony’s perspective was that he was violently attacked by a huge man out of the blue sometime after 1:07 a.m. while doing nothing more than dancing on a 9 The prosecution attempts to blame the confrontation on Tony, citing Steven Goucher’s claim that at some point after Reister demanded that Tony get down from the table, Tony responded “fuck you.” The evidence that this happened is exceedingly thin. Not one other eyewitness — including Yeremina, the woman up on the tabletop with Tony, and five other eyewitnesses who were as close or closer to Tony than Goucher — heard Tony say any such thing. See A2315:20-2317:24 (Yeremina); A5053:4-19 (Cohen); A4994:4-4995:10 (Leader); A1081:10-1082:23 (Beelen); A2059:10-2060:17, 2109:16-2112:10 (Bekmetova); A3158:6-10 (Almeida). In any event, the law is well-settled that “[a]busive language does not constitute provocation” and “an initial aggressor is the one threatening to use or using physical force rather than the one using insulting language.” People v. Baez, 118 A.D.2d 507, 508 (1st Dep’t 1986); People v. Giammarino, 105 A.D.2d 802, 803 (2d Dep’t 1984) (“[T]he justification defense [is not negated] merely by finding that defendant started a verbal argument.”). 10 The prosecution suggests in a footnote that Reister was just following normal protocol at the Publick House, citing the testimony of Reister’s brother, James, and another Publick House bouncer, Brent Reiner, that “it was normal practice” to “guide” tabletop dancers down to the floor. Pros. Br. 12 n.12. Tony was not “guided” off the table. -10- tabletop with a 20 year old woman from Kazakhstan. Judging the circumstances from Tony’s perspective, as they must be, People v. Wesley, 76 N.Y.2d 555, 559 (1990), Reister initiated a violent attack against Tony. Tony, who had no military experience or martial arts training,11 responded the way any ordinary person would. He subdued his attacker with a restraint hold that, ordinarily, would be benign. That the prosecution defends the verdict with such a blatant and contrived sleight of hand highlights a critical weakness in its entire case. B. Tony could not have held an unconscious Reister for upwards of 4 minutes. The prosecution spends endless pages recounting eyewitness attempts to estimate how long Tony held an unconscious Reister, citing claims that Tony held a static Reister for upwards of 45 seconds while the two were standing in the middle of the dance floor and that he continued to hold an unconscious Reister when the two fell to the floor for up to 3 minutes. Pros. Br. 15-16, 22-24. But nowhere in the prosecution’s brief is there any acknowledgement that there was time-stamped, objective evidence that establishes that Tony could not have held Reister for even 1 minute, let alone “up to 4 minutes” as the prosecution claims. Thus, while the prosecution mentions on page 9 of its brief that Adam Rothschild took his last picture of Tony and other revelers harmlessly dancing on 11 A4802:11-4803:5 (Det. Higgins). -11- tabletops at 1:07 a.m., and 16 pages later mentions that the first 911 call was received at 1:12 a.m., the prosecution’s brief studiously avoids connecting the dots. This evidence establishes that there was only a 5 minute window from the time that Reister had his first encounter with partiers dancing on a table down the line from where Tony and Yeremina were dancing and when Tony left the Publick House. Opening Br. 17-18, 23. But even that 5 minute window significantly overestimates the possible duration of Reister’s encounters. The testimony that the prosecution elicited from deejay Paul Fallo — time-stamped evidence — clearly establishes with objective facts that all of Reister’s encounters, not just his encounter with Tony, occurred in a span of less than 3 minutes. These pages of Fallo’s testimony literally are not even cited in this or any other section of the prosecution’s brief. It is as though the deejay’s testimony — testimony that shows the flaw in the central premise of the prosecution’s case — was never given. Pros. Br. 24. In his testimony, Fallo tracked his movements against the running time code on a CD-player while a technician played “Calabria,” the song that Fallo was playing that night. The song runs for 6 minutes and 30 seconds and Fallo would play it when he wanted to take a break. Fallo would use musical cues in the song to time when he could leave and when he had to return to the deejay booth. A2890:7-20. -12- Using the time code on the CD player like a stopwatch, Fallo told the courtroom technician to stop the CD at the point that he left the deejay booth to make his way out of the Tap Room. Fallo confirmed: he left the booth at the point when the lyrics started, 1 minute and 5 seconds into the song.12 The technician then started the CD player again and Fallo told the technician to stop the CD at the point that Fallo reentered the Tap Room and saw Tony and his friend, Adam Cargill, leaving. The technician reported: Fallo directed that the record be stopped at 4:18 into the song.13 The total elapsed time: 3 minutes and 13 seconds. Accepting Fallo’s testimony that it took him 30 seconds to make it through the Tap Room, a room “crowded” with “20, 25 or so” patrons,14 Fallo was out of the Tap Room for approximately 2 minutes and 45 seconds. That was the window in which the entire series of events occurred: 2 minutes and 45 seconds. During that brief period: 1. Reister was able to get Cargill and Beelen to stop dancing and come down off their table.15 12 A2907:3-17, 2958:10-18, 2997:25-2998:5; A6221 (CD recording). 13 A2907:22-2908:23. 14 A2958:25-2959:6, 2959:18-19. 15 A1003:18-1004:11 (Beelen); A3040:17-3041:23 (Almeida). -13- 2. Reister made his way through the crowd from the table where Cargill was dancing to the table where Tony was dancing with Yeremina.16 3. Reister approached Tony and Yeremina and had some kind of exchange with them.17 4. Reister left the table where Tony was dancing with Yeremina and walked toward the deejay booth.18 5. Reister returned to the table where Tony and Yeremina were dancing.19 6. Reister said something further to the pair.20 7. Reister threw Tony off the table and onto the adjoining banquette.21 8. Reister landed on top of Tony on the banquette.22 9. Reister and Tony pulled and pushed each other while on the banquette.23 16 A2167:21-25 (Muthig); A3041:24-3042:5 (Almeida); A2315:20-2316:3 (Yeremina). 17 A2316:6-2317:21 (Yeremina). 18 A2111:2-4 (Bekmetova). 19 A2111:9-14, 2111:17-20 (Bekmetova). 20 A2111:22-2112:4 (Bekmetova); A2315:20-2317:21 (Yeremina); A1415:9-19 (Goucher); A2228:2-6 (Muthig). 21 A4995:11-4996:11 (Leader); A5055:17-5057:2 (Cohen); A1313:11-21, 1315:2-4 (Goucher); A2318:15-22, 2356:20-2357:6 (Yeremina); A2061:20-2062:6 (Bekmetova). 22 A5059:10-5060:10 (Cohen); A4996:9-21 (Leader). 23 A1009:13-17, 1063:11-16 (Beelen). -14- 10. Reister and Tony got up off the banquette and made their way to the center of the Tap Room floor.24 11. Reister and Tony grappled in the middle of the Tap Room.25 12. Tony attempted to put Reister in a bear hug while the two men were face-to-face.26 13. Tony somehow was able to get Reister into a headlock from behind.27 14. Tony maintained his hold on Reister while the two stood in the middle of the dance floor.28 15. Reister and Tony fell to the floor, breaking a table.29 16. Tony held Reister in a headlock and was beaten by Everhart, Cato and Pacella.30 17. Cargill got through to Tony, Tony realized he was no longer in danger, and released the hold.31 24 A1013:17-25 (Beelen). 25 A1009:18-1010:8, 1063:17-21 (Beelen); A1516:24-1517:21 (Baugher). 26 A3050:3-16 (Almeida). 27 A1010:9-12, 1067:5-20 (Beelen); A1466:15-25, 1467:8-12, 1478:10-15 (Baugher). 28 A1015:16-1017:25, 1027:1-5 (Beleen); A1154:10-24 (Cato); A1317:4-1318:11, 1327:15- 1328:14 (Goucher); A1467:8-12, 1468:11-13 (Baugher); A2176:10-25 (Muthig). 29 A1155:8-19 (Cato); A3051:7-18 (Almeida); A2064:24-2065:1 (Bekmetova). 30 A1162:9-21 (Cato); A2390:1-2391:24, 2393:14-2394:8, 2395:25-2396:11 (Everhart); A2752:22-2753:3, 2754:23-2755:4, 2756:24-2757:7, 2758:2-2759:5 (Pacella). 31 A3212:20-3214:3 (Almeida); A5059:10-5061:25 (Cohen); A2836:12-16 (Pacella). -15- 18. Tony got up from the floor and, with Cargill, left the Tap Room just as Fallo was entering.32 All of this happened in the space of 2 minutes and 45 seconds. Fallo’s testimony established that the story that the prosecution attempts to tell is simply not true. Tony could not have held Reister for even 1 minute, let alone 3 or 4 minutes. Each and every one of the eyewitnesses who testified for the prosecution on the basis of their subjective perception overestimated the duration of this brief, traumatic incident for reasons that Dr. Penrod would have explained if the trial court had permitted him to testify. C. The physical injuries that Reister suffered were not significant and do not establish that Tony used excessive force. The prosecution’s claim that Reister suffered “massive trauma” to his neck is just one more overstatement of the record. Pros. Br. 3. There were no marks on the surface of Reister’s neck. Rather, the injuries were internal: a fracture of the left hyoid bone and left thyroid cartilage and hemorrhages in the neck tissue, predominantly on the left side. Dr. Wilson testified that the hyoid is a 32 A2898:7-2899:8 (Fallo). -16- “very slight and delicate” bone; the thyroid cartilage horn is “extremely delicate as well.” Dr. Wilson admitted: these were not life-threatening injuries.33 The evidence did not establish whether these injuries were suffered when Tony held Reister on the ground, or at some time before then, when Tony concededly was acting in self-defense. Dr. Wilson acknowledged on cross- examination that neck injuries of the sort he observed could result either from an individual falling to the ground while being held in a headlock or from grappling of any kind, including while standing, which placed pressure on the hyoid bone.34 Dr. Spitz agreed that Reister’s neck injuries could have been caused while Tony and Reister were struggling in the middle of the dance floor or when Reister, in the words of one witness, “went down really hard” to the floor.35 The medical literature that the prosecution used in an attempt to cross-examine Dr. 33 A3642:10-3643:3, 3634:14-17 (the “very delicate hyoid bone”), 3863:14-15 (hyoid bone is “rather delicate, small and narrow”), 3863:21-3864:11, 3874:14-16. See also A4618:3-7 (Dr. Spitz) (hyoid bone is “a sort of delicate horseshoe-shaped bone”). 34 A3868:19-3870:6, 3874:11-23 (thyroid cartilage is “extremely delicate”; could be broken if there were “directed force as a result of someone’s hands hitting the ground and the bony part of the wrist” impacting the neck), 3862:22-3863:11 (fractures to the hyoid bone could occur by application of “directed force” to “that particular location”; it “doesn’t have to be an extended period of time, no”). 35 A4724:15-4726:23 (Dr. Spitz); A1155:8-12 (Cato). -17- Spitz documented two cases in which individuals suffered the same neck injuries that Reister did from the application of only seconds of force.36 Thus, as Dr. Spitz testified, there was no way of telling whether Reister’s neck injuries were “caused very quickly or over a period of time”; “even a very brief period” of pressure resulting from a “quick directed force” could have caused them.37 Indeed, the fact that Reister’s neck injuries were overwhelmingly on the left side indicated to Dr. Spitz that the injuries that the prosecution trumpets resulted when Reister’s 250-pound frame fell to the ground with Tony holding him in a restraint hold with his bony right wrist pressing against the left side of Reister’s neck.38 D. Reister suffered from a host of preexisting medical conditions that made his heart prone to go into a fatal arrhythmia. In the face of all of the expert testimony to the contrary, the prosecution claims that the evidence that Reister’s preexisting conditions made his heart prone to go into a fatal arrhythmia was “speculative.” Pros. Br. 35. To support this assertion, it points to the testimony of Dr. Miguel Blanco, the cardiologist who started treating Reister when Reister was only 37 years old, a 36 A4754:13-25; A6671-76 (Donald Reay & John W. Eisele, Death from Law Enforcement Neck Holds, 3 Am. J. of Forensic Medicine and Pathology 253 (1987)). 37 A4618:17-4619:15, 4620:2-9. 38 A4620:10-4621:19, 4756:18-4757:4. -18- remarkable fact in itself.39 But Dr. Blanco’s testimony bolstered the defense, not the prosecution. Dr. Blanco agreed that, in an individual with Reister’s preexisting conditions, carotid sinus stimulation could cause an electrical malfunction in the heart that would trigger a fatal arrhythmia.40 In an attempt to find some support from Dr. Blanco’s testimony, the prosecution claims that Dr. Blanco testified that Reister “was not at ‘high risk’ for a cardiac event.” Pros. Br. 36 (emphasis added) (citing A4113-14). That claim is an outright falsehood. Dr. Blanco did not use the phrase “cardiac event” at the cited page of his testimony or anywhere else. What Dr. Blanco actually said was that Reister was not at “high risk for a heart attack.” As Dr. Blanco explained, when he was referring to a “heart attack,” he meant a clot inside one of the blood vessels of the heart.41 39 A6515 (medical record). 40 A4441:6-4444:21. Dr. Blanco testified that if this had happened, he would have expected Reister’s blood tests to show a .80 or higher level of troponin, an enzyme that is released when there is damage to the heart muscle. A4243:15-4245:10, 4446:18-4447:21, 4520:9-21, 4412:23- 4414:14. On the morning of August 9, two days after the Reister’s heart failed, Reister’s troponin level was .95, well above the threshold that Dr. Blanco identified. A6462 (blood test report). Dr. Blanco overlooked the August 9 blood test when he testified, an omission that was pointed out by Dr. Kassotis. A4944:9-12 (Dr. Kassotis). That Dr. Blanco — who had “personal friendships” with a number of Suffolk County ADA’s — made this “mistake” is particularly notable in light of the fact that the August 9 test results were literally in his hands when he testified. A4497:21-23, 4538:19-23, 4507:4-16. 41 A4113:6-13, 4241:25-4242:10, 4459:5-14. -19- Reister’s risk of a heart attack was simply irrelevant. He did not die from a “heart attack” and neither Dr. Kassotis, Dr. Spitz, nor any of the other preeminent physicians who submitted affidavits debunking Dr. Wilson’s testimony ever claimed that the root cause of Reister’s arrhythmia was disease of his coronary arteries. Rather, the evidence established that Reister suffered from conditions that impaired the electrical circuitry of the heart. Dr. Blanco did not claim otherwise, and was in no position to do so given that the electrical studies of Reister’s heart — including studies that Dr. Blanco had ordered — all showed that Reister had a history of premature ventricular contractions that had worsened over time.42 Thus, it is at best disingenuous for the prosecution to cite Dr. Wilson’s testimony that Reister “had a normal looking heart except for its increase in size and thickness of the wall” in support of its effort to downplay the significance of Reister’s preexisting conditions. Pros. Br. 35. “Except for” the “increased size” of his heart, the conditions Reister suffered from were not visible to the naked eye. The EKGs, however, told quite a different story, as did Reister’s medical history and the microscopic exam of Reister’s heart muscle tissue that the defense (not the 42 A4394:11-4395:19 (Dr. Blanco); A6910 (Reister’s doctor recommending that he “[c]onsult with a [primary care physician] or Cardiologist to further assess Cardiac abnormalities”); A6911-6926 (medical records); A1901:11-23 (attending nurse); A4921:23- 4922:17 (Dr. Kassotis). -20- prosecution) undertook, an examination that confirmed that Reister’s heart was predisposed to go into arrhythmia.43 E. Tony was in a state of fear and panic because of Reister’s aggressive attack. Finally, the prosecution claims that Tony was not frozen in fear and that, instead, he was “very much aware of his actions” and was singularly focused on “choking Andrew Reister.” Pros. Br. 18. As shown in our opening brief, the testimony was to the contrary. Opening Br. 21-22 & nn.18-22. Tony had never met Reister before. He had no motive to hurt Reister, and the prosecution on appeal does not advance one. In support of its claim, the prosecution cites Cato, the individual who supposedly yelled, “Dude, you’re fucking killing him.” Pros. Br. 18. But Cato testified that he yelled at Tony and hit him in the back of the head with his closed fist using “medium strength” to “to try to have him wake up, realize what he was doing.”44 The testimony of the other witness the prosecution cites, Everhart, 43 A4600:8-4603:5 (Dr. Spitz); A4894:22-4895:19 (Dr. Kassotis). 44 A1162:4-21, 1174:4-10 (emphasis added). See also A1072:2-11 (Beelen) (Tony did not “seem to be responding to anything that those people are doing”); A2804:4-22 (Pacella) (testifying that he grabbed Tony — who he mistakenly thought was someone named Wally — “[p]ut [his] hands on his shoulder, his back or shoulder blade, I don’t remember exactly where, and went Wally come on, like you would wake someone” and agreeing that the person he thought was Wally “doesn’t respond,” “doesn’t say anything,” “doesn’t look at [him],” “doesn’t do anything”). -21- shows only that Tony was frozen in fear and was not responding to his surroundings.45 In fact, Everhart himself was not aware of what was going on around him.46 But as the prosecution would have it, the fact that its witnesses — many of whom had been drinking47 — were oblivious to their surroundings can be excused, but Tony’s failure to perceive the situation until he recognized Cargill’s familiar voice cannot be. The evidence simply does not bear this out. Tony, rightfully, was in a panic. He acted in self-defense. ARGUMENT POINT I THE TRIAL COURT COMMITTED THREE LEGAL ERRORS THAT GROSSLY DISTORTED THE EVIDENCE ON A CENTRAL ISSUE IN THE CASE AND DENIED TONY A FAIR TRIAL. If the prosecution’s brief makes anything clear it is this: time was a central issue in the case. How long did it take for Reister’s heart to go into a fatal 45 A2395:25-2396:11. 46 A2505:2-20. See generally Opening Br. 21 n.20. 47 Beelen had consumed 5 to 6 drinks and had slurred speech. A2090:1-20 (Bekmetova); A1049:21-1050:2, 1003:4-8 (Beelen). Beelen’s group of 10 friends, who were closest to Tony and Reister, were playing beer pong for three hours before they arrived at Publick House. A1046:20-1047:21 (Beelen). Baugher also had 4-5 drinks that night. A1509:15-1510:9, 1505:3- 8 (Baugher) (female friend was “shuttling” drinks back and forth for Baugher and his crew). -22- arrhythmia? How long did Tony hold Reister before Reister fell to the floor “like a tree”? How long did Tony hold Reister after the two fell down? The issue of timing inextricably intertwined with the critical elements here: with causation (could Reister’s death have been caused by a fatal arrhythmia that kicked in so quickly that his death was not solely caused by excessive force?), with intent (did Tony maintain the hold so long that he must have intended to cause serious bodily injury?), with justification (was it so long that the force he used was excessive?). Timing was one of the most significant issues in this case. On this critical issue, the trial court made three errors, errors that, in Dr. Wilson’s case, permitted the prosecution to impermissibly fill a glaring hole in its proof. The prosecution’s attempts to defend these rulings all fail.48 A. The trial court erred when it refused to strike Dr. Wilson’s unsupported and unsupportable opinion testimony. Without that evidence, the proof against Tony was legally insufficient. The prosecution concedes, as it must, that Dr. Wilson’s opinions were not “drawn from ‘any kind of medical or scientific literature.’” They were, instead, his own, based on Dr. Wilson’s “background in medicine and science.” 48 The prosecution argues that the standard of review with respect to each of these rulings is abuse of discretion. But since the trial court’s evidentiary rulings all turned on misapprehension of the law, the rulings are subject to de novo review. People v. Cronin, 60 N.Y.2d 430, 433 (1983). -23- Pros. Br. 50. The Court need not consider the issue further. The prosecution admits that Frye was not satisfied. Dr. Wilson’s opinions are not based on generally accepted medical principles, and there is no medical literature supporting his claims. No surprise there, as the medical literature all says that Dr. Wilson was wrong. 1. The proper remedy for the erroneous admission of Dr. Wilson’s opinion testimony is dismissal of the indictment. Instead of starting with a defense of the admissibility of Dr. Wilson’s testimony, the prosecution’s opposition starts, tellingly, with a rear guard action, a discussion of what remedy should be ordered if the Court concludes that the testimony should have been excluded. And, even there, the prosecution agrees that if the evidence without Dr. Wilson’s testimony was insufficient to convict, the appropriate remedy ordinarily would be to dismiss the indictment. Pros. Br. 43. This Court’s precedents, cited by the prosecution,49 are consistent with the constitutional prohibition against subjecting a criminal defendant to double jeopardy.50 49 Pros. Br. 43 & n. 25 (citing People v Reed, 40 N.Y.2d 204 (1976), and People v Montanez, 41 N.Y.2d 1144 (1976)). 50 See Opening Br. 67 n.64. See also Hoffler v. Bezio, 2013 WL 4016924, at *15 (2d Cir. Aug. 8, 2013) (“[W]hile only a few courts of appeals have concluded that the Double Jeopardy Clause, as construed by the Supreme Court in Burks, compels sufficiency review before ordering -24- The defense did not have to move for a directed verdict at the end of the prosecution’s case to preserve this issue for appellate review. Once the trial court rejected the defense motion to exclude Dr. Wilson’s testimony, any hypothetical argument premised on the claim that the prosecution failed to satisfy its burden of proof on this element of the case would have been futile. With the (erroneous) admission of Dr. Wilson’s testimony, the evidence was legally sufficient. This Court indisputably has the power — indeed, the obligation — to dismiss the indictment if it concludes that Dr. Wilson’s opinions should not have been admitted. The only argument the prosecution offers for why the indictment should not be dismissed is that “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.” Pros. Br. 45. That argument is wrong on both the facts and the law. Having ruled that Dr. Wilson’s testimony was properly admitted, the Second Department did not consider whether the prosecution met its burden without Dr. Wilson’s testimony. CA2-4. In any event, even if the Second (footnote continued) retrial based on trial error, the courts of appeals, our own included, are unanimous in concluding that such review is warranted, at a minimum, as a matter of prudent policy.”). -25- Department had concluded that the remaining admissible evidence was legally sufficient, its conclusion would be one of law, not fact, and would clearly be reviewable by this Court. The prosecution’s assertion that this Court does not have the power to decide this legal issue, unsupported by any citation, is just wrong.51 And without Dr. Wilson’s testimony, the evidence was legally insufficient. The prosecution does not dispute that it had to prove beyond a reasonable doubt that Reister’s death was caused by the force that Tony applied after he was no longer justified in acting in self-defense. There was no admissible evidence in the record that would permit the jury to reach that conclusion. In fact, the competent evidence was all to the contrary. As noted above, the conviction in Perry was thrown out because there was “no evidence in the record as to whether or not the first shot could have killed the deceased.”52 The conviction in Patterson was thrown out because there was no proof that the “excessive shots, if they were excessive, were fatal in effect.”53 51 See, e.g., People v. Kent, 19 N.Y.3d 290, 303-04 (2012) (reversing Appellate Division’s finding of legal sufficiency and remanding for resentencing); People v. Wong, 81 N.Y.2d 600, 608, 610-11 (1993) (“question of law” whether “the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to find the elements of the crime to have been proven beyond a reasonable doubt”; reversing convictions and dismissing the indictment). 52 176 A.D.2d at 902. 53 21 A.D.2d at 360. -26- Once Dr. Wilson’s testimony is excluded, that same conclusion must be reached here. 2. The challenge to Dr. Wilson’s testimony was preserved. Continuing its rear guard action, the prosecution argues next that the challenge to the admissibility of Dr. Wilson’s opinions was not preserved. Pros. Br. 49-53. That argument — which is made without citation to a single authority — was rejected sub silentio by the trial court and Second Department and should be rejected here as well. CPL 470.05(2) provides that an issue is preserved for appeal so long as a protest is made at the time the objectionable testimony is given or “at any subsequent time when the court had an opportunity of effectively changing the same.”54 Cases construing the provision recognize that “where the objectionable nature of the evidence does not become apparent until a later point in the trial” a 54 See Peter Preiser, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 11A, CPL 470.05, at 10 (“In considering timing for preservation of an objection, request or motion, the issue not only must be called to attention of the court, but must be made when the court has ‘an opportunity for effectively changing’ its ruling. During the trial this includes periods of rebuttal, reopening of the People’s case before the jury retires to consider the verdict, if permitted, or in an extremely rare case resumption of proof after the jury has retired to deliberate.”) (emphasis added) (internal citation omitted). -27- party may move to strike the testimony at that time, and such a motion is sufficient to preserve the issue for appeal.55 That is what happened here. During cross-examination, Dr. Wilson admitted that his opinions were based on his “personal experience,” his “background in medicine and science” and “[p]erhaps seeing something on television.” He acknowledged that he could not identify any literature to back up his claims.56 When he was cross-examined about his opinion that the pattern of petechiae on Reister’s face could only be explained by 2 to 4 minutes of neck compression, Dr. Wilson admitted that he had not himself conducted a scientific study on the significance of petechiae and could not remember the last time he read an article on the subject. A3916:9-16. Defense counsel then sought to cross-examine Dr. Wilson with medical literature refuting his claims. The prosecution objected and at side bar the defense made its first motion to strike. The trial judge stated that while he was 55 5 Robert A. Barker & Vincent C. Alexander, New York Practice Series, Evidence in New York State and Federal Courts, § 1:4 (2010) (citing Lopato v. Kinney Rent-A-Car, Inc., 73 A.D.2d 565 (1st Dep’t 1979) (motion to strike proper where lack of proper foundation for expert’s opinion did not become apparent until cross-examination)). See also People v. Landy, 59 N.Y.2d 369, 374 (1983) (evidentiary challenge raised after prosecution witness’ testimony first made clear that basis for challenge existed preserved the issue for appellate review); People v. Brannon, 58 A.D.2d 34, 39 (4th Dep’t 1977) (“While defense counsel did not immediately object to Simpson’s testimony as to prior drug sales on behalf of the defendants, his subsequent objection was closely proximate and was adequate to preserve the issue for appeal.”). 56 A3915:2-23, 3916:14-16, 3849:11-18, 4011:8-21. -28- “not inclined to grant any motion to strike” because “the point that you’re raising goes to the weight that it be given, not admissibility,” “I’ll let you [defense counsel] make that [motion] more fully if you wish at a later time.” The prosecution did not challenge the trial court’s ruling.57 At that point, the preservation requirement was satisfied: the trial court had before it the actual testimony challenged and the basis for the objection. The trial court also set the rules for any further application that the defense chose to make, rules that the defense followed when it renewed its motion to strike orally and in writing.58 Moreover, not only was the objection timely, the trial court actually ruled on it. Thus, in the words of CPL 470.05(2), “the court expressly decided the question raised on appeal.” “The chief purpose of demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial 57 A3918:10-20 (defense counsel: Dr. Wilson’s testimony is “not based on any scientific accepted principle or accepted literature”); A3918:21-3919:2 (court ruling). 58 A4274:8-4279:7 (colloquy); A616-643 (motion). And the prosecution had an opportunity to redirect Dr. Wilson and present some medical literature, some testimony from Dr. Wilson, however self-serving, to demonstrate that his opinions were grounded in generally accepted medical principles or, for that matter, call a second witness to bolster Dr. Wilson’s claims. It did neither. Thus, the prosecution’s complaint of unfairness rings particularly hollow. It had the burden to establish the admissibility of Dr. Wilson’s opinions, was on notice that the defense was claiming that Dr. Wilson’s opinions were inadmissible and had a clear chance to offer evidence that Dr. Wilson’s opinions were based on generally accepted medical principles. It did not and could not do so. -29- court’s attention.”59 The procedure followed by defense counsel and the trial court served the purpose of the timely notice objection requirement, i.e., to “alert[] all parties to alleged deficiencies in the evidence and advance[] the truth-seeking purpose of the trial.”60 Not only does the position advanced by the prosecution have no basis in the language of CPL 470.05(2), the case law, the Practice Commentary or the treatises, it has no basis in common sense. In contrast to what happens in a civil case with extensive pretrial disclosure of expert opinions, the only medical-expert disclosure the defense in a criminal case typically gets is the autopsy report, the medical examiner’s grand jury testimony and, if the medical examiner agrees, an informal interview. A criminal defense lawyer thus is often in no position to make a Frye or Parker v. Mobil Oil objection before or at the moment an unsupportable opinion comes out of the expert’s mouth.61 All of these considerations apply here. Dr. Wilson did not state in his autopsy report or in his grand jury testimony, and did not disclose in his interview 59 People v. Gray, 86 N.Y.2d 10, 20 (1995). 60 Gray, 86 N.Y.2d at 21. 61 And precisely because discovery in a criminal trial is limited, it would violate due process under both the state and federal constitution to require the defense to make a Frye or Parker motion before or at the instant that the prosecution’s expert offers his or her opinions and before the defense has an opportunity to probe the basis for those opinions on cross-examination and to consult with its own experts. -30- with defense counsel his opinions on the critical issue of the case: that Reister’s neck must have been compressed for 2 to 3 minutes to induce a fatal arrhythmia from carotid sinus compression and that Reister’s preexisting conditions were irrelevant.62 Those opinions only came out at trial.63 Their total lack of foundation in any medical principle was exposed in cross-examination. A motion to strike then followed. The Frye and Parker issues were preserved.64 62 E.g., A3689:10-25 (“Q. Now also, Doctor, on this same point if it takes approximately . . . 15 to 30 seconds of pressure before your — for your heart to stop[,] if someone released this pressure after you’ve collapse what would happen to the individual if you’ve collapsed on the ground, that pressure is now released, what happens? A. Well, within about 10, 15 seconds the heart will start again if there is no further messages coming to the heart from the brain to say slow down to the point of stopping. If the pressure on that sinus, on that receptor, is released then the person is able in the context of a healthy cardiovascular system to have the heart start again and wake up. Q. On their own? A. Yes.”), 3983:6-10 (“I would disagree with the author’s assumption that any cardiac rhythm disorder is likely to significantly increase the likelihood that a carotid sleeper hold is going to result in a death.”). 63 A51 (defense counsel’s affidavit); A452-472 (grand jury minutes); A6646-59 (autopsy report). In fact, in his grand jury testimony, Dr. Wilson falsely claimed (in response to a juror question about whether Reister had any preconditions that would have explained his death) that he had reviewed Reister’s medical records when, in fact, he had not. A470:2-4 (Dr. Wilson grand jury testimony); A3714:19-3718:5, 3747:18-3752:9 (Dr. Wilson cross-examination). 64 If all of this were not enough, the defense motion to set aside the verdict constitutes separate grounds for preservation and separate grounds for reversal, grounds that, contrary to the prosecution’s claim (at 57), are also raised on this appeal. See A18, A45-48. The prosecution’s complaint that the Court should simply ignore the post-trial affidavits from six additional experts all establishing that Dr. Wilson’s opinions are uniformly rejected by his peers is without substance. Pros. Br. 53. The defense was in no position to assemble this blue ribbon group of experts and present their testimony at trial. The very purpose of a CPL 330.30(3) motion is to permit the defense to present evidence that it could not obtain in time for trial. That is why the prosecution’s claim that this case is distinguishable from Rivas v. Fischer, 687 F.3d 514, 544 (2d Cir. 2012), is so far off base. Pros. Br. 61-63. The affidavit of Dr. Wecht in Rivas was filed after Rivas’s conviction was upheld in the Appellate Division as part of a motion to set aside the judgment under CPL 440.10(1)(g) on the ground that his evidence was not reasonably available -31- 3. Dr. Wilson’s opinions flunked Frye and Parker. When the prosecution finally does turn to defend Dr. Wilson’s testimony on the merits, it offers a grab bag of arguments that are all without substance. 1. The prosecution’s main argument is that “the science of medicine is well established” and that, as an experienced medical examiner, Dr. Wilson was free to opine on any subject pertaining to that field. Pros. Br. 59. See also Pros. Br. 56 (“forensic medicine and its method for determining causation are so ‘notoriously’ accepted, that the Court could have taken judicial notice of its reliability”). That is not and cannot be the law. There is no single “generally accepted principle” of “medicine.” There are instead thousands of generally accepted principles within the field of medicine. Indeed, medicine is not just one field: medicine in the twenty-first century has become extraordinarily specialized. A rule that gives carte blanche to medical examiners to opine on any medical issue in any field of medicine so long as they preface their testimony with the words “Based on my training and experience in forensic medicine” would effectively eliminate Frye whenever a medical examiner testifies. This is precisely the sort of (footnote continued) at trial. The affidavit was considered by both the state court and the federal court on habeas long after trial. -32- approach that the National Academy of Sciences condemned in its 2009 study, an approach that has resulted in the use of untested and invalid medical opinions to convict innocent people and let actual perpetrators go free.65 2. The prosecution claims that this case involves nothing more than a “mere” disagreement as to Dr. Wilson’s conclusions. Pros. Br. 54. Hardly. The dispute here is whether there is a basis in medical science for Dr. Wilson’s opinions at all. Frye “‘emphasizes counting scientists’ votes.’”66 Dr. Wilson is a minority of one. 3. The prosecution asserts that “[t]here was never a claim that [Dr. Wilson] applied any new, emerging or rogue medical science when Dr. Wilson drew his conclusion.” Pros. Br. 60. Not true. All of the experts agreed that Dr. Wilson’s opinions were “novel” in the sense that they are new, unprecedented and unsupported.67 65 National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward (2009), at 11, 53; Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 4 (2009). 66 Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006) (quoting People v. Wesley, 83 N.Y.2d 417, 439 (1994) (Kaye, Ch. J., concurring)). 67 A4730:22-4731:13 (Dr. Spitz) (“I’m here because . . . I had some serious questions and concerns . . . regarding the way some of the medical evidence was characterized . . . primarily by Dr. Wilson.”); A88-90 (Dr. Decter) (“Dr. Wilson’s further opinions — that in order to induce death, carotid sinus compression would need to be applied continuously or intermittently for 2 to 3 minutes and that the decedent’s pre-existing conditions were irrelevant — are novel opinions that are not accepted in the medical field.”); A96-98 (Dr. Fierro) (“While each of Mr. Reister’s predisposing risk factors individually would not ordinarily have resulted in a fatal event, taken -33- The case law recognizes that “novel” in the context of Frye does not mean simply “new-fangled.” Rather, Frye governs the admissibility of expert opinions that are based on principles and methodologies that are “new” in the sense of being untested, unprecedented or not well-recognized.68 Dr. Wilson’s opinions are “novel” within the meaning of Frye. 4. Citing Prince, Richardson on Evidence § 7-315, the prosecution claims that New York law permits a medical examiner to testify about the “‘nature, cause, extent and duration of a person’s injury or disease, or as to the cause of death.’” Pros. Br. 55. But the very page of the treatise the prosecution cites (footnote continued) together, they placed him at increased risk for arrhythmia and sudden death. Dr. Wilson’s opinion to the contrary is a novel one that is not accepted in the medical community and that is not supported by the medical literature.”); A77-79 (Dr. Andrew) (“Likewise, the assertion that petechiae and facial cyanosis indicate a specific time range of neck compression cannot be supported by either the medical literature or my experience in both clinical and forensic medicine. Referring again to Knight’s Forensic Pathology, the author states, ‘It is virtually impossible to measure the average minimum time of gripping that will produce congestion, cyanosis and petechiae from venous occlusion.’”); A163 (Dr. Kassotis) (same); A273-76 (Dr. Perper) (same); A304, 306-07 (Dr. Spitz) (same); A330-32 (Dr. Wecht) (same). 68 See, e.g., Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 417-18 (1st Dep’t 2008) (plaintiff’s evidence failed Frye because none of the medical literature in the record supported the position of plaintiffs’ expert); Pauling v. Orentreich Med. Grp., 14 A.D.3d 357, 358 (1st Dep’t 2005) (plaintiff’s evidence failed Frye because the expert’s “novel” theory relied on “his own unpersuasive observational studies” and because the expert offered “no supporting medical literature whatsoever”). Indeed, even after a methodology or principle has become well- accepted, Frye scrutiny may still be appropriate if a consensus develops that the method or principle is not in fact sound. See People v. Dean, No. 4555-2007 (N.Y. Co.) (holding Frye hearing on admissibility of bite mark evidence); see also Jack Nicas, Flawed Evidence Under a Microscope, THE WALL ST. J., July 18, 2013, at A3. Thus, because human learning does not stand still, Frye scrutiny can be applied to principles whose acceptance dissipates as science progresses. -34- includes a cross-reference to Section 7-308, where the authors make clear that all expert testimony, from whatever source, must satisfy Frye.69 Richardson does not recognize a “medical examiner exception” to Frye. 5. Finally, the prosecution accuses the defense of misreading Parker and claims that Dr. Wilson’s opinions satisfy the separate and independent requirement of admissibility that Parker imposes. Pros. Br. 57-58. Not so. As discussed in our opening brief, Parker requires that in order to be admissible, expert testimony must be based on an adequate foundation and must be found to be reliable. Opening Br. 54-55. Dr. Wilson’s opinions were neither. He had no foundation for his views in science, views that were not only unreliable, but wrong. B. The trial court erroneously refused to let Dr. Penrod testify. 1. Nothing in the law limits expert psychological testimony to the issue of eyewitness identification of a person. The prosecution tries to defend the trial court’s ruling prohibiting Dr. Steven Penrod from testifying by arguing that People v. LeGrand, 8 N.Y.3d 449 (2007), and its progeny establish that psychologists can only testify on the reliability of eyewitness testimony where there is an identification issue. Pros. Br. 69 Prince, Richardson on Evidence §§ 7-315, 7-308 (“required bases” for medical examiner’s opinion include “the admissibility requirement applied to all scientific evidence, i.e., general acceptance within the relevant scientific community”) (emphasis added). -35- 69-71. There is no such rule. LeGrand makes that very point: “expert opinion testimony regarding the reliability of an eyewitness identification should be treated in the same manner as testimony offered by other experts.”70 Thus, LeGrand represents just one application of the general rule governing the admissibility of expert testimony set forth in People v. Cronin, 60 N.Y.2d 430, 433 (1983). And LeGrand itself recognizes that post-event suggestion and trauma can influence an eyewitness’ memory of faces.71 There is no principled basis for concluding that testimony about the impact of post-event suggestion and trauma is permissible to educate a jury on one aspect of memory — identification — and on no other. 2. The evidence established that Dr. Penrod should have been permitted to testify. The prosecution’s next claim is that Dr. Penrod’s testimony was properly excluded because there was no legitimate issue for him to testify to. The basis for the contention is People v. Santiago, where the Court explained that expert testimony about the reliability of eyewitness identification is unnecessary if “sufficient evidence corroborates an eyewitness’ identification of the defendant.”72 From this proposition, the prosecution argues that Dr. Penrod’s testimony was 70 8 N.Y.3d at 458. 71 8 N.Y.3d at 454, 458. 72 17 N.Y.3d 661, 669 (2011) (citing People v. Young, 7 N.Y.3d 40, 45 (2006)). -36- properly excluded because “numerous witnesses observed defendant place Andrew Reister in a chokehold and maintain it upon an unconscious Reister for up to four minutes.” Pros. Br. 72. In making this claim, the prosecution asks the Court to overlook the fact that Shamir Cohen and Kira Leader both testified that less than 1 minute passed from the time that Reister attacked Tony to the time that Tony left the Publick House. Pros. Br. 72. What the prosecution completely ducks, however, is that the objective time-stamped evidence — from deejay Paul Fallo, from the time record on Rothschild’s camera and from the time record of the 911 call — established that its witnesses’ “guesstimates” were all wrong. Tony could not have held Reister “for up to four minutes.” See pp. 10-15, supra.73 Thus, in the words of Santiago, the objective evidence did not “corroborate” the prosecution’s eyewitnesses. This case therefore has no similarity to the cases in which the Court has held that the refusal to permit a psychologist to 73 The prosecution also overlooks the fact that its witnesses gave contemporaneous statements to the police characterizing the struggle as Tony and Reister “grappl[ing],” with Tony and Reister “grasping” each other, or with Tony holding Reister in an “embrace[]” or “headlock.” Opening Br. 40 & n.42. The “choke,” “choker,” “choked” mantra came later. -37- testify was excusable because there was no legitimate issue at trial for the psychologist to testify about.74 And there is no real claim from the prosecution that the general standard governing the admissibility of expert testimony laid out in People v. Cronin was not met.75 Nor could there be. Dr. Penrod is one of the nation’s leading experts on human perception and the fallibility of eyewitness testimony. His testimony that eyewitnesses routinely overestimate the duration of “traumatic and violent” events is universally accepted in his field. The prosecution tries to explain away the inconsistencies in its eyewitness’ testimony by arguing that this was the “natural result” of witnesses “recollecting a traumatic and violent event.” Pros. Br. 63. But that is exactly the point that Dr. Penrod would have explained, exactly why he should have been permitted to testify. His testimony would have provided “jurors more perspective than they get from ‘their day-to-day experience, their common observation and their knowledge.’”76 74 As set out in our opening brief (at 77 n.75), the exclusion of Dr. Penrod’s testimony violated Tony’s constitutional right to call witnesses in his own defense. That is true even if there was corroborating testimony from the prosecution’s witnesses. See Holmes v. South Carolina, 547 U.S. 319, 330-331 (2006) (the exclusion of the defendant’s evidence cannot be based solely on the consideration of the prosecution’s evidence). The prosecution’s brief makes no attempt to address this constitutional issue. 75 60 N.Y.2d 430 (1983). 76 People v. Young, 7 N.Y.3d 40, 45 (2006) (citing Cronin, 60 N.Y.2d at 433). The prosecution does not even mention the authorities establishing that the subjects of Dr. Penrod’s proffered testimony are beyond the ken of the average juror. -38- C. The trial court violated Tony’s right to present a defense when it refused to permit defense counsel to use Flynn’s insurance interview to refresh her recollection. 1. The defense was entitled to use Flynn’s prior recorded statement to refresh her recollection. When the defense called as a witness Megan Flynn — who had told an insurance investigator that she saw Tony hold Reister for only 6 to 10 seconds — and asked her how long she saw Tony hold Reister in a headlock, she testified: “it could have been a minute or so. I don’t know.” A3817:9. The prosecution argues that this testimony did not provide a sufficient foundation to refresh Flynn’s recollection. Pros. Br. 77. The claim strains all credulity. At trial, describing this very same testimony, when she was arguing that Flynn did not need to have her recollection refreshed, the ADA conceded that Flynn “doesn’t have a good memory of it.” A3818:17. The prosecution’s argument thus boils down to the proposition that because Flynn did not use four magic words — “I do not recall” — the defense was precluded from using the insurance interview to refresh her recollection. But there is no such requirement. To the contrary, “it should be permissible to use a writing to refresh recollection even where the witness purports to remember an event, as, for example, to help the witness remember additional facts or to modify -39- her testimony.”77 That is exactly what the defense was seeking to do: use the insurance interview to help Flynn remember that she did not see Tony hold Reister for “a minute or so,” but rather only for “6 to 10 seconds.”78 The prosecution’s further argument based on CPL 60.35(3) is equally frivolous. Pros. Br. 77-78. CPL 60.35(3) only applies when a witness gives testimony that “does not tend to disprove the position of the party who called him.” It has no application here where Flynn’s testimony of “a minute or so” did tend to disprove the defense position. But even if it did apply, the Section only prohibits using a witness’ prior contradictory statement “for the purpose of refreshing the recollection of the witness in a manner that discloses its contents to the trier of the facts.” Id. (emphasis added). The statute does not prohibit asking the witness to read the prior statement silently to him or herself.79 The prosecution’s claim (at 78) that 77 5 Robert A. Barker & Vincent C. Alexander, New York Practice Series, Evidence in New York State and Federal Courts, § 6:80 n.12 (2010). 78 The only authority that the prosecution cites, Nappi v. Gerdts, 103 A.D.2d 737 (2d Dep’t 1984), is inapposite. Pros. Br. 77 n.67. The decision does not indicate what question was asked of the witness or how the witness responded. Moreover, the very treatise the prosecution cites to support the trial court’s ruling criticizes Nappi as an outlier, “imposing an overly strict interpretation of the rule.” 5 Robert A. Barker & Vincent C. Alexander, New York Practice Series, Evidence in New York State and Federal Courts, § 6:80 n.12 (2010). 79 See Prince, Richardson on Evidence § 6-423, at 432 (Richard T. Farrell ed., 11th ed. 2008) (“[a]n effort no doubt may be made to refresh the witness’ recollection . . . [by] asking the witness, in the jury’s presence, to read the statement or transcript silently to determine whether it refreshes his recollection”); People v. Abraham, 29 A.D.3d 333, 334 (1st Dep’t 2006) (rejecting -40- defense counsel sought to disclose the contents of Flynn’s insurance interview to the jury to refresh her recollection is false. A3819:14-15 (“I would ask that . . . at a minimum I be permitted to show it to her.”).80 2. A party may use a witness’ prior statement to refresh its own witness’ recollection when the party is surprised by the witness’ testimony. The prosecution does not dispute that the defense was surprised by Flynn’s testimony. Rather, it claims that the cases and treatise discussing the “surprise” doctrine are not “persuasive” and that, in any event, the doctrine was repealed in criminal cases by CPL 60.35(3). Pros. Br. 79-80. Neither contention has merit. The “surprise” doctrine is discussed at length in the very treatise that the prosecution cites to the Court as authoritative.81 The doctrine is a recognition (footnote continued) contention that party improperly impeached its own witness where prior statements were used to refresh the witness’ recollection without disclosing the contents of the statements to the jury); People v. Layman, 284 A.D.2d 558, 560 (3d Dep’t 2001) (same); People v. Carrion, 277 A.D.2d 480, 481-82 (3d Dep’t 2000) (same); People v. Andrews, 267 A.D.2d 1071, 1071 (4th Dep’t 1999) (same); People v. Gittens, 165 A.D.2d 750, 751 (1st Dep’t 1990) (same). 80 Equally unsupported is the argument that all of these problems would have been solved if the defense had asked to have Flynn declared a hostile witness. If granted, the only difference is that the defense would have been able to ask leading questions. Prince, Richardson on Evidence, § 6-424, at 433 (Richard T. Farrell ed., 11th ed. 2008) (“Although he [the hostile witness] may be cross-examined, and leading questions may be put to him by the party calling him, this confers no right to impeach.”). 81 Prince, Richardson on Evidence § 6-222, at 370 (Richard T. Farrell ed., 11th ed. 2008) (“when surprised by a witness’ testimony, the party may question the witness with respect to previous inconsistent statements made by the witness, for the purpose of refreshing the witness’ -41- of the obvious fact that an individual who contradicts an earlier statement has, by doing so, evidenced that he or she needs to have his or her recollection refreshed. And the doctrine remains good law for good reason: it protects a defendnat who calls a witness in reliance upon a prior statement from exactly what the prosecution did here, i.e., arguing to the jury that the defendant’s own witness provided a basis for conviction.82 3. The Court should avoid an interpretation of CPL 60.35 that violates the state and federal constitutions. CPL 60.35 by its terms applies only to the use of prior sworn statements. And by its terms, the statute distinguishes in CPL 60.35(1) and (2) and in CPL 60.35(3) between refreshing a witness’ recollection and impeaching a witness.83 That distinction is well-established in the law, which recognizes that an attempt to refresh a witness’ recollection in order to cause the witness to give (footnote continued) recollection”). While Section 6-222 does discuss CPL 60.35, it says only that in a criminal case, “when a witness’ testimony does not tend to disprove the position of the party who called him, the witness’ prior inconsistent statement may not be used by such party to refresh the witness’ recollection ‘in a manner that discloses its contents to the trier of the facts.’” Id. at 371. 82 A5599:1-3 (prosecution summation) (“Megan Flynn even told you, the defense’s own witness, told you it was one to two minutes.”). 83 Peter Preiser, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 11A, CPL 60.35 (subdivision 3 “does not . . . preclude a sincere attempt to refresh recollection in a discreet non-publicizing manner, as by showing the witness some written material ([i.e.,] grand jury minutes) and asking him whether it assists his memory”) (quotation marks omitted). -42- accurate testimony is not impeachment; it is done to elicit truthful testimony, not to prove that the witness is mistaken or lying.84 Thus, the statute does not by its terms speak to the situation in which a witness gave a prior statement that was not under oath and does not, by its terms, prohibit counsel from using a prior statement to refresh, as opposed to impeach, its own witness, when the witness gives harmful testimony. The trial court’s construction of CPL 60.35 ignored both of these distinctions. Its construction, if accepted, would cause the statute to run afoul of the due process and confrontation clauses of the New York and federal constitutions. Consistent with its practice of construing statutes to avoid constitutional infirmities, this Court should make limit the reach of CPL 60.35 to its express terms, and make clear that the statute has no application where, as here, a party calls a witness who gives harmful testimony and then seeks to have the witness silently read a prior statement, sworn or unsworn, that is at variance with the witness’ trial testimony in order to refresh the witness’ recollection. If the Court concludes that CPL 60.35 does in fact mandate such a per se prohibition, 84 See People v. Gittens, 165 A.D.2d 750, 751 (1st Dep’t 1990) (argument that the prosecutor’s use of grand jury testimony to refresh a witness’ recollection amounted to impeachment in violation of CPL 60.35 “must be rejected since the prosecutor used the witness’ Grand Jury minutes to refresh her recollection in good faith and the contents of the witness’ statements were not disclosed to the jury”). -43- then it should find CPL 60.35 unconstitutional on its face or as applied. See Opening Br. 81-85.85 The defense called only three eyewitnesses to Reister’s attack. The two witnesses who were not questioned and prepared by the prosecution (Leader and Cohen) gave testimony that was completely exculpatory. Flynn, the third witness, gave a prior recorded statement that was consistent with Leader’s and Cohen’s and exculpatory as well. After the prosecution became aware of Flynn’s insurance statement, it listed Flynn as a witness. If Flynn had been called by the prosecution, the defense would have been free to use Flynn’s prior recorded statement for impeachment and disclose its contents to the jury. But instead, the prosecution dropped Flynn who, prepared by the prosecution, walked away from her prior statement and gave testimony that was harmful to the defense. The prosecution then argued to the jury 85 The prosecution contends that this constitutional challenge cannot be reviewed by this Court because it was raised in the Appellate Division but not in the trial court. Pros. Br. 80. This Court, however, has recognized an exception to the usual preservation requirement “when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute.” People v. Thomas, 50 N.Y.2d 467, 471 (1980). Accordingly, this Court has reviewed unpreserved claims related to the right against self-incrimination, People v. McLucas, 15 N.Y.2d 167, 172 (1965), and the right to counsel, People v. Arthur, 22 N.Y.2d 325, 329 (1968), People v. McLean, 15 N.Y.3d 117, 121 (2010) (“[W]e have continued to follow the holding of Arthur that claims [related to the right to counsel] need not be preserved.”). Tony’s right under the due process and confrontation clauses of the U.S. Constitution and the New York State Constitution is no less “fundamental” than the right against self-incrimination and the right to counsel. -44- that the defense’s own witness contradicted Tony’s defense. In short, the prosecution turned a search for the truth into a game of deception. In defense of this successful effort to mislead the jury, the prosecution makes a generalized argument that “rules are rules” and that, in any event, the trial court made a particularized determination that the application of the party-witness rule was appropriate on the specific facts of this case, thereby satisfying the constitutional standard provided in People v. Williams. Pros Br. 80, 81-82. Williams, however, undercuts all of the prosecution’s claims. In that case, the Court upheld the application of the rape shield law, a statute designed to protect rape victims from “surprise, harassment, and unnecessary invasions of privacy” in the particularized facts of the case before it.86 But there was no particularized consideration of whether any state or private interest was advanced here, no countervailing interest to protect whatsoever. There was only a rigid and, ultimately, arbitrary application of a rule that the United States Supreme Court has declared “archaic, irrational, and potentially destructive of the truth-gathering process.”87 86 81 N.Y.2d 303, 313 (1993). 87 Chambers v. Mississippi, 410 U.S. 284, 296 & n.8 (1973). -45- POINT II THE VERDICT SHOULD BE SET ASIDE BECAUSE TONY WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY. A. Tony’s right to an impartial jury was violated by the participation of F.O., a juror who admits that she was biased. The prosecution devotes 27 pages to try to explain away the fact that F.O. admitted in a sworn affidavit that she was biased against the defense and convince the Court that this sworn statement does not warrant reversal. None of its arguments succeed.88 1. The mid-deliberation arrest of F.O.’s son was an “outside influence” that rendered her biased. The prosecution’s entire legal argument rests on the premise that the arrest of F.O.’s son was not an “extraneous or outside” influence impacting the jury’s deliberative process within the meaning of CPL 330.30(2). Pros. Br. 102- 06. But Tony’s claim rests not only upon CPL 330.30(2), but also upon our state 88 In rejecting the defense motion, the trial court held that People v. Brown, 48 N.Y.2d 388, 393 (1979), recognized only two types of conduct which may give rise to juror bias: “corrupt attempts to affect the jury process” and “well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial.” A14-15. That was an erroneous legal ruling subject to de novo review. Opening Br. 88 n.82. The trial court’s further conclusion that Tony was not “prejudiced” because F.O. was given a standard jury charge to decide the case on the evidence was also an erroneous legal ruling subject to de novo review. In any event, even assuming that these rulings are subject to an abuse of discretion standard, that standard has been met. -46- and federal constitutions. Both guarantee a defendant the right to an impartial jury.89 And both provide an independent ground for reversal here, regardless of whether the requirements of CPL 330.30(2) have been met. The fact that F.O. did not disclose her bias until she approached the defense, that she did not disclose her bias to her fellow jurors or to the trial judge at the time, is irrelevant. What matters for constitutional purposes is that she was, in fact, biased by her son’s arrest. That bias was objectively reasonable and subjectively felt. Thus, the prosecution’s claim that the defense argument represents an “impermissible impeachment of the verdict” based on nothing more than “an individual juror’s internal thoughts not shared with the jury” simply misses the point. Pros. Br. 89. Reversal is required because a juror biased by an “outside influence” participated in Tony’s trial in violation of his right under the Sixth Amendment of the U.S. Constitution and Article 1, Section 2 of the New York State Constitution to be tried before an impartial jury. 89 Remmer v. United States, 350 U.S. 377, 381 (1956) (conviction must be vacated where “neither [the juror accused of bias] nor anyone else could say that [juror] was not affected in his freedom of action as a juror” by outside influences); Brooks v. Dretke, 418 F.3d 430 (5th Cir. 2005), rehearing en banc denied, 444 F.3d 328 (5th Cir. 2006); Hunley v. Godinez, 975 F.2d 316, 318-19 (7th Cir. 1992) (courts have been inclined to presume bias in “situations where the prospective juror is connected to the litigation at issue in such a way that is highly unlikely that he or she could act impartially during deliberations”); United States v. Torres, 128 F.3d 38, 45 (2d Cir. 1997) (court must imply bias where “an average person in the position of the juror in controversy would be prejudiced”); Stokes v. People, 53 N.Y. 164, 171-72 (1873); People v. D’Alvia, 171 A.D.2d 96, 105 (2d Dep’t 1991) (“Both the New York and Federal Constitutions provide for trial by an impartial jury in criminal cases.”). -47- Indeed, the situation with F.O. fits exactly the implied bias framework discussed by Justice O’Connor in her concurrence in Smith v. Phillips, 455 U.S. 209 (1982). Justice O’Connor explained that where a juror has a “stake in the outcome of the trial” the juror’s bias must be implied as a matter of law. In these circumstances, Justice O’Connor continued, “the juror may have an interest in concealing his own bias.” Id. at 221-22. Here, F.O. had a stake in the outcome of the trial: she believed that if she hung the jury, the District Attorney would go harder on her own son.90 And not only did F.O. have every reason to “conceal” her bias — she actually did conceal it until her conscience would not permit her to stand by and see a young man whom she believed to be innocent go to prison. The requirements of CPL 330.30(2) have been met as well. There was “improper conduct by a juror.” F.O. swore to decide the case solely on the evidence. F.O. admits that she violated this oath and permitted the arrest of her son — indisputably an “outside” and “extraneous” consideration — to affect her vote. This violation of her oath “may have affected a substantial right of the 90 The prosecution claims that F.O.’s “fear of reprisal” was without basis, “created within her own mind.” Pros. Br. 109. Even if it was, the result would be the same. But, objectively, her fears were reasonable, as shown by the fact that the Suffolk County District Attorney sought and received permission for the appointment of a special prosecutor to handle F.O.’s son’s case after F.O. submitted her affidavit. A391. The prosecution claims that this was done to “avoid any air of impropriety.” Pros. Br. 108. But the “air of impropriety” did not come out of nowhere. It came from the District Attorney’s plainly reasonable concern that an objective person could conclude that F.O.’s son was at risk of receiving harsher treatment by the Ditsrict Attorney because his mother had come forward to support Tony’s claim of innocence. -48- defendant,” i.e., Tony’s constitutionally protected right to an impartial jury. The fact that other cases decided under CPL 330.30(2) have dealt with instances in which extraneous factual matters entered into the jury’s deliberations is irrelevant. Nothing in the statute or the case law so limits the statute’s reach. 2. The defense only had to establish that F.O. was biased. It did not have to prove that F.O. changed her vote only because of that bias. The prosecution’s second argument is no better. The claim is that F.O.’s affidavit represents nothing more than a “classic case of juror’s remorse.” Pros. Br. 84. The events discussed by F.O. in her affidavit may be characterized in many ways, but a “classic case” this is not. In making this claim, the prosecution argues that “defendant selectively winnows portions of F.O.’s affidavit pertaining to her son’s arrest, which were not — even according to F.O. — the sole or even primary reason as to why she changed her vote.” Pros. Br. 89-90.91 But there was no “selective 91 In order to bolster this argument, the prosecution devotes 9 pages recounting instances in which F.O. advised the trial court of juror misconduct. What a turn of events. In one of those instances the prosecution seized on F.O.’s note to the court and (successfully) argued that Juror 10 should be disqualified. See A5142:23-5144:2, 5145:25-5146:21, 5147:4-5150:24. And while the prosecution opposed disqualification in the second instance, Juror 12, the trial court overruled that objection and disqualified the juror. See A4213:8-4214:24, 4214:25-4215:6. Even with respect to T.B., the trial court concluded that alternate juror C.D. was telling the truth and that T.B. was lying. Compare A5944:6-18 (T.B. tells the court she did not disclose the state of deliberations), with A5961:1-19 (court “credits” C.D.’s version of events and finds T.B. improperly disclosed the state of deliberations). The picture that emerges from this chain of -49- winnowing” here. The claim is not that F.O. changed her vote only because she feared for her son. The claim is that F.O. was biased, a fact that she admits.92 And, contrary to the prosecution’s claim, the law is clear that a defendant does not have to establish that the “sole” or “primary” reason a juror voted to convict is because the juror was biased. The constitutional test is whether the defendant was deprived of the right to an impartial jury because of the participation of a juror who admits to bias or whose bias can be presumed as a matter of law.93 A defendant does not have to show that a biased juror changed his or her vote at all. It is the mere participation of the biased juror that, in itself, constitutes the constitutional violation. The fact that F.O. changed her vote the first day back after her son was arrested makes this case easier, not harder.94 (footnote continued) events is that F.O. was a conscientious juror who succumbed to unbearable pressure resulting from the arrest of her son. 92 A66 (I was “terrified that the District Attorney’s Office would be much harder on my own son if I were the only Juror voting against a guilty conviction.”); A67 (“I agreed to” vote guilty “in the hope of protecting my own son from the possible wrath of the DA and because I could not physically or emotionally go on any longer.”); A67 (“I did this because I feared for myself and for my son.”). 93 See Smith, 455 U.S. at 209, 221-23; Brooks, 418 F.3d at 433-35. 94 The prosecution’s attempt to distinguish Brooks is unavailing. Both here and in Brooks, the arrest put the juror in an unbearable conflict situation, and in both cases, the juror suffered tremendous emotional upheaval from the arrest. Compare A64-68 (F.O. affidavit recounting traumatic experience of her son’s arrest, including the “tremendous amount of pressure” from her family about having to go back to court as a juror), with Brooks, 418 F.3d at 435 (sentencing hearing was “one entire week of hell”). Indeed, because reversal was required in Brooks, despite -50- The requirement of CPL 330.30(2) is similar: a new trial must be ordered if the juror misconduct “may have affected a substantial right of the defendant.” Thus, the statute dispenses with any need to prove that the juror’s bias even affected the juror’s vote. The test is whether the juror’s bias “may have” affected the defendant’s rights, not whether it in fact did. Under any reading of F.O.’s affidavit, it is clear her lack of impartiality “may have affected” Tony’s right to an unbiased jury. So, again, F.O.’s affidavit makes this case easier, not harder. B. Tony’s rights were violated by the participation of T.B. It is just as apparent that Tony’s constitutional rights were violated by the participation of Juror No. 2, T.B., a juror who took a job with the Suffolk County Police Department set to start right after deliberations finished and who lied to the judge twice when he asked her whether she had disclosed the state of jury deliberations. See Smith, 455 U.S. at 222 (O’Connor, concurring) (juror biased as a matter of law where “the juror is an actual employee of the prosecuting agency”). The prosecution tries to play this down, pointing out that, prior to the time T.B. was empanelled, she worked as a floater. But T.B. was not merely going (footnote continued) the juror’s promise that he could be impartial, reversal is a fortiori required here given that F.O. voluntarily admitted that she could no longer be impartial. -51- to do a 3-month rotation that happened to be through the Suffolk County Police Department. Rather, defense counsel informed the court that T.B. was “going to work for the Suffolk County Police Department” when the trial concluded, i.e., that she was going to take a full time job. C.D.’s affidavit confirms that T.B. had told her that this was true, as does F.O.’s.95 If the trial court had any doubts on the subject, all it had to do was ask. It didn’t. And finally, the prosecution’s claim (at 117) that it is “purely speculative” to claim that T.B.’s new job gave her a reason to curry favor from her new employer and colleagues after the trial is frivolous. Is there any question in the world that T.B. would have been excluded for cause if her true employment status were known? * * * The real reason why the trial court kept T.B. on the jury is apparent from its ruling, where it cited “the stage in the proceedings that we’re at” and “the length of the deliberations” as reasons to deny the defense motion. A5966:10-14. The court thus acknowledged that it denied the motion partly because it had 95 A5995:1-5 (colloquy); A74 (C.D. affidavit) (T.B. “announced that she had learned that as soon as the trial was over she was going to work for the Suffolk County Police Department. She expressed a lot of excitement about her new position.”); A56 (F.O. affidavit) (T.B. told the jurors “that upon the conclusion of the trial she would be working with the Suffolk County Police Department at Police Headquarters in Yaphank in the Background Investigative Services Division.”). -52- already invested months into the case, was 8 days into jury deliberations and did not want to see a mistrial. Those same factors explain the trial court’s decision to reject F.O.’s sworn admission of bias without even holding a hearing. As F.O. says in her affidavit, “the only thing that mattered was that everyone, including the Judge, wanted a conviction and it didn’t matter how this conviction was reached.” A64. POINT III REVERSAL IS REQUIRED BECAUSE THE ADA ENGAGED IN REPEATED, SERIOUS MISCONDUCT IN HER SUMMATION. The prosecution violated Tony’s constitutional rights when the ADA argued not once, but three times, that the jury could not find that Tony acted out of fright or panic because it had not heard testimony “from the witness stand” to prove what Tony was “thinking,” what he “felt,” or what “was in [his] mind.” Opening Br. 98-103. The three arguments the prosecutor raises in response are all erroneous. A. The prosecution’s repeated violation of Tony’s Fifth Amendment right is subject to review by this Court. The prosecution’s first argument is that this issue was not preserved because the defense did not object to the improper argument at the time it was made. The prosecution is wrong. -53- The defense objected to the ADA’s improper summation at its conclusion and requested a curative instruction, which the trial court refused. A5623:22-5625:2. That was all that was necessary to preserve the issue.96 None of the cases cited by the prosecution involved a situation in which the defense made a request for a curative instruction and detailed the basis for the request at a time when the court could have ameliorated the prejudice by giving the instruction.97 B. The prosecution’s attempt to excuse its violation of Tony’s Fifth Amendment right is meritless. The prosecution’s argument on the merits also fails. Notably, the prosecution does not seek to defend the principal ground that the trial court offered for its decision, i.e., that the ADA “never specifically said that the defendant did not testify.” A5622:22-24. Thus, as the prosecution now concedes, unless they 96 See People v. Medina, 53 N.Y.2d 951, 953 (1981) (objections to prosecution’s summation could have been preserved by requesting a “curative instruction”); People v. Tolbert, 198 A.D.2d 132, 134 (1st Dep’t 1993) (challenge to prosecutor’s summation preserved for appeal where defense counsel requested a curative instruction); People v. Williams, 155 A.D.2d 394, 395 (1st Dep’t 1989) (same). 97 See CPL 470.05(2) (issue is preserved for appeal so long as a protest is made at the time the issue arises or “at any subsequent time when the court had an opportunity of effectively changing the same”); People v. Romero, 7 N.Y.3d 911, 912 (2006) (prosecution’s summation comments unreviewable where the basis for defendant’s objection was not identified until a post summation mistrial motion); People v. LaValle, 3 N.Y.3d 88, 115-16 (2004) (same); People v. Harris, 98 N.Y.2d 452, 491 n.18 (2002) (same); People v. Williams, 46 N.Y.2d 1070, 1071 (1979) (prosecutorial summation statements unreviewable where defense made no “objection at all”). People v. Cona, 49 N.Y.2d 26 (1979), is completely inapposite as it addresses the consequences of a defendant’s failure to object to a jury instruction. -54- were excusable, the ADA’s repeated, indirect references to Tony’s right to remain silent violated the New York State and federal constitutions. Opening Br. 98-100. So the prosecution offers an excuse: the ADA was simply responding to the defense argument that Tony was frozen in fear. Pros. Br. 125-27. This argument, if accepted, would make the Fifth Amendment’s prohibition against prosecutors capitalizing on the defendant’s exercise of his or her right not to testify a dead letter. In the vast majority of criminal cases, the defendant will not testify. In those cases, the defense will argue that the prosecution failed to meet its burden of proving criminal intent on the basis of circumstantial evidence. If the Fifth Amendment is to have meaning, the prosecutor cannot use the guise of “responding” to a defense argument that the prosecution did not prove intent as a backdoor means of commenting on the defendant’s failure to testify. And, in fact, the case law condemns precisely the sort of calculated, indirect reference to the defendant’s failure to testify that the prosecution made here. See Opening Br. 100. That case law goes unmentioned in the prosecution’s opposition brief. The defense properly summarized the evidence supporting the inference that Tony held Reister in a neck hold because he was frozen in fear. The prosecution argued, instead, that there was an absence of evidence regarding Tony’s state of mind “from the witness stand.” These comments could only be -55- understood to refer to the fact that Tony had failed to testify because the only witness who could have, but did not, testify about Tony’s state of mind was Tony. C. The violation of Tony’s Fifth Amendment right cannot be dismissed as harmless error. The prosecution’s claim that the ADA’s improper comments during summation were harmless is equally frivolous. When a constitutional right is at issue, the court must determine that there is no “reasonable possibility that the error might have contributed to defendant’s conviction” and that the evidence of guilt is “overwhelming” before it can excuse the violation.98 In a case where the jury deliberated for 9 days, acquitted the defendant of the top charge and voted to convict only after a juror’s son was arrested by the same law enforcement agency that was pressing for the conviction, there is simply no way of concluding that this exacting standard was met.99 98 People v. Crimmins, 36 N.Y.2d 230, 237 (1975) (emphasis added). The case cited by the prosecution for the proposition that an error is harmless where there is no “significant probability . . . that the jury would have acquitted the defendant had it not been for the error” relied upon the portion of Crimmins dealing with non-constitutional errors. Pros. Br. 133. 99 While reversal is mandated on the basis of the prosecution’s violation of Tony’s Fifth Amendment right, the prosecutor’s other misconduct in summation provides still more grounds for reversal. Nothing in the prosecution’s response changes that. Just as in People v. Riback, 13 N.Y.3d 416, 423 (2009), the ADA here repeatedly and improperly departed from the trial record. The ADA violated the trial court’s own instructions by referring to Reister’s family and Reister’s “act of kindness” in donating his organs. A5533:18-24. See People v. Lopez, 200 A.D.2d 767, 768 (2d Dep’t 1994) (“[E]vidence of the deceased’s nonviolent nature is only probative where it is established that the defendant was aware thereof.”). And the ADA inflamed the jury and distorted the trial record by analogizing Tony’s actions to an intentional drowning as part of its -56- POINT IV IN THEIR OFFICIAL REPORTS, TWO POLICE OFFICERS WROTE THAT TONY WAS INTOXICATED. TONY WAS ENTITLED TO AN INTOXICATION CHARGE ON THE BASIS OF THIS EVIDENCE ALONE. The touchstone of the prosecution’s argument that Tony was not entitled to an intoxication charge is the claim that “there was no evidence from any of the witnesses who observed defendant on the night of the crime that he appeared intoxicated.” Pros. Br. 142. That claim is astonishing. Detective Nordt was a “witness who observed defendant on the night” he was arrested. He wrote in an official police report that was admitted into evidence as a business record that Tony was under the influence of drugs or alcohol. He was not called to recant his report. Officer Rodecker was another “witness who observed defendant on the night” of the arrest. Rodecker was in direct contact with Tony for hours. He too wrote that Tony was intoxicated in an official police record. The prosecution’s suggestion that these official records can be written off as meaningless “police paperwork” is incredible. Pros. Br. 137. Just as (footnote continued) “choke, choker, choking” mantra, a mantra that Dr. Wilson himself had disclaimed. See Opening Br. 102 n.91. The defense did not open the door to this prosecutorial abuse. -57- incredible was Rodecker’s recantation — one year and seven meetings with the prosecution later (A1912:22-25) — that he made an “error” when he wrote the word “intoxicated” in his own handwriting in an official report. Generously, his epiphany created a credibility issue for a properly instructed jury to resolve, not the court.100 An intoxication charge must be given if there is “sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis.”101 The two police officers are not merely “reasonable persons,” they are trained in detecting inebriation. And they did not simply “entertain a doubt” as to Tony’s sobriety. They both concluded that Tony was intoxicated. The police records alone entitled Tony to an intoxication charge. The prosecution’s attempt to justify the trial court’s ruling by pointing to testimony suggesting that Tony was not “wasted” and that Tony was able to dance on a table, answer police questions and sit on a stool in handcuffs without falling to the ground thus is all beside the point. Pros. Br. 137-42. But all this did 100 See People v. Turner, 141 A.D.2d 878, 878 (2d Dep’t 1988) (“Whether a defendant is too intoxicated to form intent is essentially a jury question. Similarly, any discrepancies or inconsistencies in testimony present issues of credibility primarily for the jury to resolve.”) (internal citations omitted); People v. De Tore, 34 N.Y.2d 199, 207 (1974) (“[T]here was the one substantial recantation with the witness explaining his reasons for the change, reasons that the jury was entitled to accept or reject.”). 101 People v. Perry, 61 N.Y.2d 849, 850 (1984). -58- was create a jury issue. Viewing the evidence in the light most favorable to Tony, the trial court was required to credit the official police reports and credit deejay Fallo’s statement that he believed Tony was playing a drinking game with his buddies and let the jury decide whether to accept Rodecker’s recantation and decide whether Fallo was shading his testimony with the word “believe” because he had been coached to do so. A2979:12-24. Moreover, the prosecution overstates the significance of all of the evidence it point so. Fall-down drunkenness is not the test.102 As the courts have recognized, proof that the defendant did not display “objective indicia of intoxication, e.g. slurred speech and a lack of balance,” does not in itself disentitle the defendant to an intoxication charge. People v. Dawson, 173 A.D.2d 262, 262 (1st Dep’t 1991); see also People v. Smith, 43 A.D.3d 475, 475-76 (2d Dep’t 2007) (murder conviction reversed for failure to charge even where evidence showed 102 The evidence for these claims is not as the prosecution portrays it. Beelen was able to dance on a table even though she had consumed 5 to 6 drinks and had slurred speech. A2090:1- 20 (Bekmetova); A1049:21-1050:2, 1002:21-1003:8 (Beelen). Cohen explained her answer that Tony did not appear to be “wasted” by saying that Tony had a “buzz” and was showing “no inhibitions.” A5058:24-5059:9. Bekmetova explained that when she testified that Tony did not appear drunk she meant that he was not “stumbling down” and his “speech [wa]sn’t slurred.” A2093:23-2094:1. While Bekmetova testified that Tony “didn’t smell of alcohol,” Rodecker explained that his written report was an “error” because Tony did smell of alcohol. A2105:1-7 (Bekmetova); A1650:21-1651:1, 1742:3-6 (Rodecker). The ultimate irony is that the prosecution points to the testimony of Sami Abbes — a cabdriver who begged not to be questioned about drunkenness at the Publick House because he was frightened he would offend staff members and thereby lose his livelihood in the “Small town Southampton” (A2028:5-2029:4) — because he often drove drunk people home and yet asks the Court to ignore the official reports prepared by two police officers whose job it was to arrest the drunks who drove themselves. -59- defendant was “walking fine,” speaking clearly and “understood everything that was said”).103 The “relatively low threshold” this Court has set for an intoxication charge was met.104 103 This case has no resemblance to People v. Sirico, 17 N.Y.3d 744 (2011). In that case, the defendant was an “experienced archery hunter” (id. at 745), and “accomplished marksman” (see 2011 WL 4829442, at *6), who shot the victim with whom he was arguing through the chest with an arrow from a considerable distance. Here, Tony was not trained in martial arts, combat or cardiology, was unaware of Reister’s preexisting conditions, and had no reason to know his restraint hold could cause serious injury, let alone death. Thus, there is no basis for the Court to conclude, as in Sirico, that Tony’s actions were so clearly “purposeful” that the jury could not have accepted an intoxication defense. 104 People v. Rodriguez, 76 N.Y.2d 918, 920 (1990). -60- CONCLUSION Andrew Reister’s death was a terrible tragedy. But to compound this tragedy by allowing an unjust conviction to stand and condemning a young man who was working to put himself through college to a 17-year sentence and who was attacked by a bouncer while out dancing with his friends would be wrong. The decision below should be reversed and the indictment dismissed with prejudice. Tony should be released from prison. Dated: August 23, 2013 Of Counsel: Bernard W. Nussbaum Michael W. Schwartz George T. Conway III Charles D. Cording Scott M. Danner Dana Brusca David Zhou WACHTELL, LIPTON, ROSEN & KATZ By ________________________________ Marc Wolinsky 51 West 52nd Street New York, New York 10019 (212) 403-1000 Pro Bono Counsel for Defendant- Appellant Anthony Oddone SARITA KEDIA LAW OFFICES, P.C. 5 East 22nd Street New York, New York 10010 (212) 681-0202 Attorneys for Defendant-Appellant Anthony Oddone