The People, Respondent,v.Anthony Oddone, Appellant.

Brief

N.Y.November 14, 2013

APL-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 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: May 24, 2013 TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................... 1 QUESTIONS PRESENTED .................................................................................... 12 JURISDICTIONAL STATEMENT ........................................................................ 14 STATEMENT OF FACTS ...................................................................................... 16 A. Ladies Night at the Publick House: August 6-7, 2008 ...................... 16 B. Reister throws Tony off a table and Tony defends himself from the attack by the much larger man. ............................................ 18 C. The prosecution’s evidence established that the entire incident took substantially less than 2 minutes and 45 seconds. ............................................................................................... 23 D. Additional evidence confirmed that the entire incident was fleeting. ................................................................................................ 25 E. Defense witness Megan Flynn changes her story after meeting with the prosecution. ............................................................. 27 F. Officer Rodecker and Detective Nordt: Tony was intoxicated. .......................................................................................... 29 G. Tony is ultimately charged with murder, second degree in an extraordinarily hostile atmosphere. ................................................ 30 H. The medical testimony contradicted the central theme of the prosecution’s case. ........................................................................ 32 I. Dr. Wilson’s assertion that Reister’s carotid sinus nerve must have been compressed for 2 to 3 minutes is contradicted by accepted medical principles. ..................................... 33 -ii- J. Dr. Wilson’s other opinions about the length of time that Reister’s neck must have been compressed are also contradicted by accepted medical principles. ..................................... 37 K. The trial court refuses to permit Dr. Steven Penrod to testify. .................................................................................................. 39 L. The prosecutor’s intentionally improper summation. ......................... 41 M. The tainted jury deliberations.............................................................. 43 N. The post-trial motion to set aside the verdict is denied. ..................... 46 O. Tony’s 22-year sentence: proof of the bias that infected the trial. ................................................................................................ 50 ARGUMENT ........................................................................................................... 52 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 ......................... 52 A. The trial court erred when it refused to strike Dr. Wilson’s unsupported assertion that Reister’s neck must have been compressed for 2 to 4 minutes. ........................................................... 53 1. The Frye and Parker doctrines require the exclusion of expert opinions that are not based on generally accepted scientific principles and are unreliable. ..................... 54 2. Dr. Wilson’s opinions flunked the Frye and Parker tests. .......................................................................................... 58 3. The Court should make clear that there is no medical examiner exception to the requirements of the Frye and Parker doctrines. ................................................. 61 4. Without Dr. Wilson’s testimony, the evidence was legally insufficient to support the conviction; the proper remedy is dismissal of the indictment, not remand for a new trial. .............................................................. 64 -iii- B. The trial court erroneously refused to permit Dr. Penrod to testify that eyewitnesses routinely overestimate the duration of stressful events lasting a few minutes or less. .................. 68 1. Nothing in the law limits expert psychologist testimony to the issue of eyewitness identification. ................. 70 2. Dr. Penrod’s opinions involved matters that were central to the issue of guilt or innocence and beyond the ken of the average juror. ..................................................... 72 3. Decisions from other jurisdictions recognize that testimony of the sort excluded here is beyond the ken of the ordinary juror. .......................................................... 75 C. The trial court violated Tony’s right to present a defense when it refused to permit counsel to use Flynn’s insurance interview to refresh her recollection. .................................................. 77 1. The defense was entitled to use Flynn’s prior recorded statement to refresh her recollection. ......................... 78 2. To the extent CPL 60.35 was correctly interpreted to forbid the use of Flynn’s prior statement, the statute is unconstitutional on its face and as applied. .......................... 81 POINT II THE VERDICT MUST BE SET ASIDE BECAUSE TONY WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY ..................................................................... 86 A. The United States and New York Constitutions and the CPL all guarantee a criminal defendant the right to an impartial jury. ...................................................................................... 86 B. Tony’s right to an impartial jury was violated by the participation of two jurors who were biased by extra- judicial events during the course of the trial. ...................................... 88 1. F.O. was biased by the pending prosecution of her son by the Suffolk County District Attorney. ........................... 88 -iv- 2. T.B. was biased by her mid-trial hiring by the Suffolk County Police Department. .......................................... 95 POINT III THE PROSECUTOR’S FLAGRANT AND DELIBERATE MISCONDUCT IN SUMMATION VIOLATED TONY’S FIFTH AMENDMENT RIGHT TO REMAIN SILENT AND DENIED HIM A FAIR TRIAL .......................................................................... 98 POINT IV THE TRIAL COURT ERRED WHEN IT REFUSED TO GIVE THE JURY AN INTOXICATION CHARGE ............................................................ 103 CONCLUSION ...................................................................................................... 107 -v- TABLE OF AUTHORITIES Page(s) Cases Affronti v. Crosson, 95 N.Y.2d 713 (2001) ......................................................................... 50 n.50 Application of Frank, 14 A.D.2d 139 (3d Dep’t 1961) .................................................................. 99 Benn v. United States, 978 A.2d 1257 (D.C. 2009) .......................................................... 69 n.66, 76 Berger v. United States, 295 U.S. 78 (1935) ...................................................................................... 98 Brooks v. Dretke, 418 F.3d 430 (5th Cir. 2005), rehearing en banc denied, 444 F.3d 328 (5th Cir. 2006) ..................... 91, 92 Brown v. W. Union Tel. Co., 26 A.D.2d 316 (4th Dep’t 1966) ......................................................... 80 n.77 Bullard v. Pearsall, 53 N.Y. 230 (1873) ............................................................................. 80 n.77 Burks v. United States, 437 U.S. 1 (1978) ........................................................................................ 67 California v. Trombetta, 467 U.S. 479 (1984) .................................................................................... 81 Chambers v. Mississippi, 410 U.S. 284 (1973) ............................................................ 9, 81 n.78, 83, 84 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .................................................................................. 5 n.1 De Long v. Erie Co., 60 N.Y.2d 296 (1983) ................................................................................. 71 Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) ................................................................ 86, 90 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ............................................................... passim -vi- Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) ............................................................................ 61 n.59 Griffin v. California, 380 U.S. 609 (1965) .............................................................................. 98, 99 Griffin v. State, 754 N.E.2d 899 (Ind. 2001) ................................................................ 84 n.80 Holmes v. South Carolina, 547 U.S. 319 (2006) ............................................................................ 77 n.75 Hunley v. Godinez, 975 F.2d 316 (7th Cir. 1992) ...................................................................... 91 In re Estate of Cinque, 25 A.D.2d 752 (2d Dep’t 1966) .......................................................... 80 n.77 In the Matter of Bausch & Lomb Contact Lens Solution Prod. Liab. Litig., 906 N.Y.S.2d 778 (N.Y. Co. 2009), aff’d, 87 A.D.3d 913 (1st Dep’t 2011) .................................................................................. 62 n.60 Langston v. Smith, 630 F.3d 310 (2d Cir. 2011) ............................................................... 65 n.63 Lara v. N.Y. City Health & Hosps. Corp., 305 A.D.2d 106 (1st Dep’t 2003) ....................................................... 62 n.60 Little v. Johnson, 162 F.3d 855 (5th Cir. 1998) .............................................................. 61 n.58 Lockhart v. Nelson, 488 U.S. 33 (1988) .............................................................................. 67 n.64 Marso v. Novak, 42 A.D.3d 377 (1st Dep’t 2007) ......................................................... 55 n.54 Matter of Nicole V., 71 N.Y.2d 112 (1987) ......................................................................... 56 n.55 Mattox v. United States, 146 U.S. 140 (1892) .................................................................................... 87 Maxey v. Commonwealth, 495 S.E.2d 536 (Va. Ct. App. 1998) ................................................... 84 n.80 Morgan v. Illinois, 504 U.S. 719 (1992) .................................................................................... 90 -vii- Muhammad v. Fitzpatrick, 91 A.D.3d 1353 (4th Dep’t 2012) ....................................................... 55 n.54 O’Hagan v. Dillon, 76 N.Y. 170 (1879) ..................................................................................... 78 Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) ............................................................................ passim Pauling v. Orentreich Med. Grp., 14 A.D.3d 357 (1st Dep’t 2005) ......................................................... 62 n.60 Payne v. Tennessee, 501 U.S. 808 (1991) ............................................................................ 61 n.58 Pearce v. State, 880 So. 2d 561 (Fla. 2004).................................................................. 84 n.80 People v. Abney, 13 N.Y.3d 251 (2009) ......................................................................... 75 n.74 People v. Ashwal, 39 N.Y.2d 105 (1976) ......................................................................... 98 n.88 People v. Biggs, 1 N.Y.3d 225 (2003) ................................................................................... 67 People v. Bleakley, 69 N.Y.2d 490 (1987) ......................................................................... 65 n.63 People v. Borges, 69 N.Y.2d 1031 (1987) ................................................................. 53, 88 n.82 People v. Branch, 46 N.Y.2d 645 (1979) ................................................................................. 86 People v. Brown, 48 N.Y.2d 388 (1979) ..................................................................... 87, 93, 94 People v. Buford, 69 N.Y.2d 290 (1987) ................................................................... 87 n.81, 97 People v. Carvalho, 256 A.D.2d 1223 (4th Dep’t 1998) ........................................................... 100 People v. Cascia, 191 A.D. 376 (2d Dep’t 1920) ............................................................ 80 n.77 People v. Correa, 15 N.Y.3d 213(2010) .................................................................................. 85 -viii- People v. Crimmins, 36 N.Y.2d 230 (1975) ................................................................. 53 n.52, 103 People v. Cronin, 60 N.Y.2d 430 (1983) ................................................. 7, 54 n.53, 70 n.68, 71 People v. De Lucia, 20 N.Y.2d 275 (1967) ................................................................................. 87 People v. De Tore, 34 N.Y.2d 199 (1974) ............................................................................... 106 People v. Diaz, 20 N.Y.3d 569 (2013) ................................................................................. 71 People v. Diaz, 97 N.Y.2d 109 (2001) ......................................................................... 77 n.76 People v. Eadie, 83 A.D.2d 773 (4th Dep’t 1981) ......................................................... 90 n.84 People v. Estella, 68 A.D.3d 1155 (3d Dep’t 2009) ................................................................ 86 People v. Farnsworth, 65 N.Y.2d 734 (1985) ............................................................... 104, 104 n.92 People v. Fielding, 158 N.Y. 542 (1899) ........................................................................... 98 n.88 People v. Harris, 19 N.Y.3d 679 (2012) ......................................................................... 88 n.82 People v. Havner, 19 A.D.3d 508 (2d Dep’t 2005) .......................................................... 96 n.86 People v. Henson, 33 N.Y.2d 63 (1973) ........................................................................... 56 n.55 People v. Hetenyi, 304 N.Y. 80 (1952) ............................................................................. 98, 100 People v. Hudy, 73 N.Y.2d 40 (1988) ................................................................................... 81 People v. Jamal, 307 A.D.2d 267 (2d Dep’t 2003) ...................................................... 100 n.89 People v. King, 73 A.D.2d 895 (1st Dep’t 1980) ............................................................... 100 -ix- People v. Lee, 96 N.Y.2d 157 (2001) ............................................. 70 n.68, 70 n.70, 74 n.72 People v. LeGrand, 8 N.Y.3d 449 (2007) ..................................................... 7, 70, 70 n.70, 71, 74 People v. Maragh, 94 N.Y.2d 569 (2000) ................................................................... 86, 90 n.84 People v. May, 81 N.Y.2d 725 (1992) ................................................................................. 67 People v. McNatt, 65 N.Y.2d 1046 (1985) ......................................................................... 66, 67 People v. Michael, 48 N.Y.2d 1 (1979) ............................................................................. 68 n.65 People v. Mirenda, 23 N.Y.2d 439 (1969) ................................................................................. 98 People v. P.J. Video, Inc., 68 N.Y.2d 296 (1986) ......................................................................... 67 n.64 People v. Perry, 61 N.Y.2d 849 (1984) ............................................................... 104, 104 n.92 People v. Riback, 13 N.Y.3d 416 (2009) ............................................................................... 102 People v. Rickert, 58 N.Y.2d 122 (1983) ......................................................................... 88 n.82 People v. Rivers, 18 N.Y.3d 222 (2011) ................................................................................. 71 People v. Robinson, 61 A.D.3d 784 (2d Dep’t 2009) .......................................................... 62 n.61 People v. Rodriguez, 76 N.Y.2d 918 (1990) ............................................................................... 104 People v. Rojas, 15 A.D.3d 211 (1st Dep’t 2005) ......................................................... 96 n.86 People v. Romano, 8 A.D.3d 503 (2d Dep’t 2004) .................................................................... 90 People v. Rukaj, 123 A.D.2d 277 (1st Dep’t 1986) ................................................. 90, 90 n.84 -x- People v. Ryan, 19 N.Y.2d 100 (1966) ......................................................................... 97 n.87 People v. Santiago, 17 N.Y.3d 661 (2011) ............................................................. 68, 69 n.66, 74 People v. Sirico, 17 N.Y.3d 744 (2011) ....................................................................... 104, 106 People v. Smith, 43 A.D.3d 475 (2d Dep’t 2007) ................................................................ 104 People v. Smith, 288 A.D.2d 496 (2d Dep’t 2001) ...................................................... 100 n.89 People v. South, 47 A.D.3d 734 (2d Dep’t 2008) .......................................................... 62 n.61 People v. Spencer, 84 N.Y.2d 749 (1995) ................................................................................. 67 People v. Spicola, 16 N.Y.3d 441 (2011) ......................................................................... 75 n.74 People v. Tarantola, 178 A.D.2d 768 (3d Dep’t 1991) ........................................................ 53 n.52 People v. Taylor, 75 N.Y.2d 277 (1990) ......................................................................... 56 n.55 People v. Vario, 257 A.D. 975 (2d Dep’t 1939) .......................................................... 100 n.89 People v. Wernick, 89 N.Y.2d 111 (1996) ......................................................................... 56 n.55 People v. Wesley, 83 N.Y.2d 417 (1994) ................................................................................. 54 People v. Williams, 14 N.Y.3d 198 (2010) ......................................................................... 68 n.65 People v. Williams, 81 N.Y.2d 303 (1993) ................................................................................. 81 People v. Young, 7 N.Y.3d 40 (2006) ............................................................. 8, 70 n.70, 73, 77 Ramchair v. Conway, 601 F.3d 66 (2d Cir. 2010).................................................................. 77 n.75 -xi- Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63 (2d Dep’t 2011) ............................................................ 62 n.60 Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012) ................................................................. 47, 60 Rock v. Arkansas, 483 U.S. 44 (1987) .............................................................................. 81 n.78 Rosati v. Brigham Park Co-op. Apartments, 36 Misc. 3d 1214(A) (Kings Co. 2012) .............................................. 55 n.54 Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir. 1996) ................................................................ 61 n.59 Rousan v. Roper, 436 F.3d 951 (8th Cir. 2006) .............................................................. 61 n.58 Rushing v. Commonwealth, 726 S.E.2d 333 (Va. 2012).................................................................. 67 n.64 Schumer v. Holtzman, 60 N.Y.2d 46 (1983) ........................................................................... 89 n.83 Selig v. Pfizer, Inc., 185 Misc. 2d 600 (N.Y. Co. 2000), aff’d, 290 A.D.2d 319 (1st Dep’t 2002) ....................................................... 62 n.60 Smith v. Phillips, 455 U.S. 209 (1982) ............................................................................ 93 n.85 State v. Blankenship, 830 S.W.2d 1 (Mo. 1992) ................................................................... 84 n.80 State v. Burke, 574 A.2d 1217 (R.I. 1990) .................................................................. 84 n.80 State v. Clopten, 223 P.3d 1103 (Utah 2009) ................................................................. 69 n.66 State v. Copeland, 226 S.W.3d 287 (Tenn. 2007) ............................................................. 69 n.66 State v. Gage, 302 N.W.2d 794 (S.D. 1981) .............................................................. 84 n.80 State v. Henderson, 27 A.3d 872 (N.J. 2011) ................................................................ 69 n.66, 76 -xii- State v. Hobson, 671 P.2d 1365 (Kan. 1983) ................................................................. 84 n.80 State v. Lawson, 291 P.3d 673 (Or. 2013) ............................................................... 69 n.66, 75 State v. Maldonado, 121 P.3d 901 (Haw. 2005) .................................................................. 67 n.64 State v. Romero, 922 A.2d 693 (N.J. 2007) .................................................................... 69 n.66 Trawick v. State, 86 So. 3d 1105 (Ala. Crim. App. 2011) .............................................. 84 n.80 United States v. Daguerdas, 867 F. Supp. 2d 445 (S.D.N.Y. 2012) ........................................................ 95 United States v. Freeman, 302 F.2d 347 (2d Cir. 1962) ............................................................... 84 n.80 United States v. Graves, 465 F. Supp. 2d 450 (E.D. Pa. 2006) .......................................................... 76 United States v. Quiroz, 13 F.3d 505 (2d Cir. 1993).................................................................. 53 n.52 United States v. Torres, 128 F.3d 38 (2d Cir. 1997).......................................................................... 91 United States v. Webster, 734 F.2d 1191 (7th Cir. 1984) ............................................................ 84 n.80 Walters v. United States, 256 F.2d 840 (9th Cir. 1958) ...................................................................... 99 Washington v. Texas, 388 U.S. 14 (1967) .............................................................................. 77 n.75 Weiland v. Vigil, 560 P.2d 939 (N.M. Ct. App. 1977) ................................................... 84 n.80 Wilkins v. State, 603 So. 2d 309 (Miss. 1992) ............................................................... 84 n.80 Constitutional Provisions N.Y. Const. art. I, § 6 ...................................................................................... 81 -xiii- U.S. Const. amend. V ..................................................................................... 98 U.S. Const. amend. VI ...................................................................... 77 n.75, 81 U.S. Const. amend. XIV ................................................................... 77 n.75, 81 Statutes and Rules Ark. R. Evid. 607 ................................................................................... 84 n.80 Cal. Evid. Code § 770 ............................................................................. 84 n.80 Cal. Evid. Code § 1235 ........................................................................... 84 n.80 Conn. Code Evid. § 6-4 .......................................................................... 84 n.80 Fed. R. Evid. 607 .................................................................................... 84 n.80 Ga. Code Ann. § 24-6-607 ...................................................................... 84 n.80 Ill. R. Evid. 607 ....................................................................................... 84 n.80 La. Code Evid. Ann. art. 607 .................................................................. 84 n.80 Mass. Gen. Laws Ann. ch. 233, § 23 ...................................................... 84 n.80 Mich. R. Evid. 607 ................................................................................. 84 n.80 N.J. R. Evid. 607 ..................................................................................... 84 n.80 N.Y. CPL 60.35 ....................................................................................... passim N.Y. CPL 270.35 .............................................................................. 87 n.81, 95 N.Y. CPL 330.30 ........................................................................ 46, 49, 87 n.81 N.Y. CPL 330.40 .................................................................................... 93 n.85 N.Y. CPL 460.20 ............................................................................................ 14 N.Y. CPLR 5613 ..................................................................................... 68 n.65 N.Y. Penal Law § 15.25 ................................................................................ 104 N.Y. Penal Law § 70.70 .................................................................................. 45 Nev. Rev. Stat. § 50.075 ......................................................................... 84 n.80 Ohio R. Evid. 607 ................................................................................... 84 n.80 R.I. Evid. Rule 607 ................................................................................. 84 n.80 S.D. Codified Laws § 19-14-8 ................................................................ 84 n.80 Va. Code Ann. § 8.01-403 ...................................................................... 84 n.80 -xiv- Legal Authorities 5 Robert A. Barker & Vincent C. Alexander, New York Practice Series, Evidence in New York State and Federal Courts § 6:80 n.12 (2012) .................................................................................................. 79 Barbara E. Bergman & Nancy Hollander, 2 Wharton’s Criminal Evidence § 9:5 (15th ed. 2011) ..................................................... 84, 84 n.80 George Blum, et al., 29 Am. Jurisprudence Evidence § 567 (2d ed.) ............ 99 6 Eve Cary & Hon. Martin, New York Practice Series, New York Criminal Law § 2:13 (2012) ....................................................................... 64 Jules Epstein, The Great Engine that Couldn’t: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727 (2006) .............................................................................. 70 n.69 Thomas J. Feeney, Expert Psychological Testimony on Credibility Issues, 115 Mil. L. Rev. 121 (1987) ................................................... 70 n.69 Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009) ........ 63 n.62 Arthur Karger, The Powers of the New York Court of Appeals § 21:15 (3d Rev. 2005) ............................................................................... 66 Peter Preiser, Practice Commentary, McKinney’s Cons. Laws of N.Y., CPL § 60.35 (2003) ................................................................... 84 n.79 Prince, Richardson on Evidence § 6-214 (Richard T. Farrell ed., 11th ed. 1995) ........................................................................... 9, 78, 80 n.77 Other Authorities John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 19 (1983) ....................................................... 74 n.73 Michele Brignole, et al., Guidelines on Management (Diagnosis and Treatment) of Syncope, 22 European Heart J. 1256 (2001) ......... 49 n.49 Neal S. Cayne, et al., Carotid Angioplasty and Stent-Induced Bradycardia and Hypotension: Impact of Prophylactic Atropine Administration and Prior Carotid Endarterectomy, 41 J. of Vascular Surgery 956 (2005) .............................................................. 49 n.49 -xv- Sasalu M. Deepak, et al., Ventricular Fibrillation Induced by Carotid Sinus Massage Without Preceding Bradycardia, 7 Europace 638 (2005) ........................................................................ 49 n.49 Susan F. Ely & Charles S. Hirsch, Asphyxial Deaths and Petechiae: A Review, 45 J. of Forensic Sci. 1274 (2000) .................. 38 n.39 Marshall Fox, et al., Pause Dependent Ventricular Tachycardia Resultant from Carotid Sinus Massage, 31 Pace 389 (2008) ............. 49 n.49 Apoor S. Gami, et al., Day-Night Pattern of Sudden Death in Obstructive Sleep Apnea, 352 N.E. J. Med. 1206 (2009) ................... 49 n.49 Richard J. Greenwood & Donald A. Dupler, Death Following Carotid Sinus Pressure, 181 J. of The Am. Med. Ass’n 125 (1962) .......................................................................................................... 49 Masaharu Kataoka, et al., A Case of Vagally Mediated Idiopathic Ventricular Fibrillation, 5 Nat. Clin. Pract. Cardiovasc. Med. 111 (2008) ........................................................................................... 49 n.49 E. Karl Koiwai, Deaths Allegedly Caused by the Use of ‘Choke Holds’ (Shime-Waza), 32 J. of Forensic Sci. 419 (1987) ................... 36 n.35 Elizabeth F. Loftus, et al., Time Went by So Slowly: Overestimation of Event Duration by Males and Females, 1 Applied Cognitive Psychol. 3 (1987) .............................................. 70 n.69 National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward (2009) ................................ 47, 62, 63 Valerie J. Rao & Charles V. Wetli, The Forensic Significance of Conjunctival Petechiae, 91 Amer J. Forensic Med. and Pathology 3234 (1998) ................................................................................ 48 Donald Reay & John W. Eisele, Death from Law Enforcement Neck Holds, 3 Am. J. of Forensic Medicine and Pathology 253 (1987) .................................................................................................. 36 n.35 Richard S. Schmechel, et al., Beyond the Ken? Testing Jurors’ Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics J. 177 (2006) ..................................................................... 74 n.73 -1- INTRODUCTION Tony Oddone is innocent. He has spent five years in prison, and was sentenced to seventeen, for a tragic accident, not a crime. His first-degree manslaughter conviction and sentence in this high profile, politicized and highly emotional case were the result of a trial infected by multiple serious legal errors, a number of which bear directly on the question of guilt or innocence. His conviction should be set aside and he should be set free. The conviction stems from an incident that took place on August 7, 2008, at a brewery restaurant in Southampton. Tony was a 25 year old student at the time, working that summer as a caddie to pay tuition at St. Joseph’s College. At approximately 1:00 a.m., the decedent, a 6’4” tall, 250 pound bouncer named Andrew Reister, attacked Tony, 6’ tall and 180 pounds, without provocation. Unbeknownst to Tony, Reister was an off-duty correction officer, the President of the Suffolk County Correction Officers Benevolent Association. That fact turned the incident into a cause célèbre in Suffolk County and, most especially, in law enforcement circles. Tony was attacked because he was dancing on a table with a young woman. Reister, ostensibly enforcing an unwritten rule that only women could dance on the pub’s tabletops, hurled Tony off the table with so much force that Reister landed on top of Tony. When the two got up, Tony, acting in self-defense, -2- was able to get the bouncer into a hold described interchangeably as a “headlock” or “chokehold,” with his elbow pointing away from Reister’s windpipe and pressure applied on the sides of Reister’s neck. In the course of the ensuing struggle, described by witnesses as “grappling” or “wrestling,” with at most one punch thrown, the two fell again. Once on the floor, believing himself to still be in danger, Tony continued to hold the bouncer in the headlock. Bystanders stood by to watch what they thought was a bar fight. When some of them realized that Reister was not fighting back, they tried to get Tony to break the hold. A prosecution witness testified that he yelled at Tony and hit him in the head to “wake him up” because Tony clearly did not “realize what he was doing.” A1174:4-10 (Cato). A short time later, Tony’s friend was able to get through to Tony that it was safe to let go, which he did. Eyewitnesses gave sharply differing estimates on how long Tony held Reister in the headlock while the two were on the floor, ranging from no more than 30 seconds to 6 minutes. A5024:17-23 (Leader); A2759:17-24 (Pacella). One fact - undisputed at trial and reflected in the Second Department’s opinion - cannot be overemphasized: Reister’s death was not caused by asphyxiation. Reister did not die from the obstruction of his air supply -3- or from the obstruction of the flow of blood to his head. He was not choked to death. Rather, his death resulted from a nervous reaction to the compression of his carotid sinus nerves, nerves located on each side of the neck that continue to the heart. The stimulation of the nerves sent Reister’s heart into a fatal arrhythmia. The medical literature establishes without question that death from carotid sinus stimulation can result from just a few seconds of neck compression and that the heart can react to as little as 5 pounds of pressure on the nerve. And it establishes that the likelihood of this happening is increased in individuals with a variety of pre-existing medical conditions, conditions of precisely the sort that Reister had been diagnosed with. See pp. 33-37, infra. Three of the legal issues presented on this appeal go to the evidence bearing on the critical issue in the case: how long Tony held Reister after the two fell to the floor. The duration of the hold and the time necessary to induce a fatal arrhythmia bore on every element of the offense, most critically on whether Reister’s death resulted from the use of excessive force, or, as in fact was the case, from the initial force that Tony justifiably used to defend himself. Indeed, the issue of duration ultimately bore on whether Tony’s actions constituted any crime, let alone manslaughter. -4- Was the headlock maintained for so long that Tony - who had no motive to harm Reister - must have intended to inflict serious physical injury? Or was it a tragic accident that resulted from the brief application of a hold that, in someone without Reister’s undisputed pre-existing medical risk factors, ordinarily would be benign? As discussed in greater detail below, the evidence on these central questions was severely and improperly stacked against Tony in three respects: 1. The application of the Frye and Parker v. Mobil Oil tests to medical examiner testimony - In order to meet its burden, the prosecution elicited testimony from Dr. James Wilson, a Deputy Medical Examiner, that Reister’s death and physical condition after the incident could only be explained by the application of 2 to 4 minutes of neck compression. Dr. Wilson’s basis for his opinion? His “personal experience” and “[p]erhaps seeing something on television.” The defense moved to strike these novel and unsupported opinions, and presented overwhelming evidence from six distinguished Chief Medical Examiners and two eminent cardiologists establishing that the Deputy’s 2 to 4 minute opinion was not based on generally accepted medical principles and, indeed, was flat wrong. The competent evidence from this veritable “Who’s Who” of medical experts established: (a) that it is generally accepted in the field of medicine that a -5- fatal arrhythmia can be triggered by no more than 10 to 15 seconds of carotid sinus compression; and (b) that the likelihood of this happening is increased in an individual with any one of a number of known pre-existing conditions. These medical principles are so well understood that they were discussed in a United States Supreme Court opinion.1 But in the face of all this, the Appellate Division concluded that even if the Deputy’s contrary opinions were entirely fallacious, they could go to the jury because they were “based on his personal observations and experiences as a forensic pathologist for many years.” Without even considering the separate requirement imposed by Parker v. Mobil Oil - that an expert’s opinion must be reliable to go to the jury - the Second Department concluded: “[T]here is no basis for a Frye hearing where the challenge is to the reliability of the expert’s conclusions . . . . The defendant’s factual disagreement with [the Deputy’s] theory . . . did not require a Frye hearing.” CA3. 1 In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the district court granted an injunction against the LAPD’s use of carotid artery and bar-arm holds to subdue individuals stopped for traffic violations unless the officer’s life was in imminent danger. 461 U.S. at 100. While the Supreme Court vacated the injunction on standing grounds, it left undisturbed the district court’s factual findings that neck restraint holds that compress the carotid artery “pose a high and unpredictable risk of serious injury and death” because “‘cardiac arrest can result from simultaneous pressure on both vagus nerves regardless of the intensity or duration of the pressure.’” 461 U.S. at 116, 117 n.7 (Marshall, J., joined by Brennan, Blackmun, and Stevens, JJ., dissenting from majority’s standing ruling). -6- The ruling amounts to a medical examiner exception to the rules of evidence. The essence of Frye and Parker is that an expert’s experience alone can never substitute for the requirement that the expert demonstrate that his or her opinion is based on principles that are generally accepted in the relevant scientific community and are reliable. Thus, the speed of light is approximately 186,000 miles per second. A Ph.D. physicist can be called as a trial witness to explain that accepted law of physics. But, under Frye and Parker, a Ph.D. physicist cannot be called to contradict it, to say that, in his “personal experience,” light can travel faster or slower than that. Likewise, it is an accepted medical principle that death from carotid sinus compression can result from no more than 10 to 15 seconds of neck compression. That is how quickly the heart reacts to the stimulation of the carotid nerve, a reaction that Dr. Wilson compared to the autonomic reaction that occurs when a doctor taps a patient’s knee with a rubber mallet. No medical examiner, experienced or not, should be permitted to testify that these accepted principles of medical science are wrong. Thus, the Second Department simply missed the point: the dispute here was not with Dr. Wilson’s personal “theory.” It was with the fact that the medical principles Dr. Wilson relied upon in making his 2- to 4-minute claim have been uniformly rejected by his peers. And with that evidence properly excluded, -7- the prosecution failed to establish beyond a reasonable doubt an essential element of its case - that Reister’s death was caused solely by force that Tony used after he should have realized that the bouncer no longer posed a threat. See Point I.A, infra. 2. The exclusion of expert testimony on the fallibility of eyewitness time estimates and the impact of post-event suggestion on memory - The trial court refused to permit the defense to call an expert psychologist, Dr. Steven Penrod, who would have testified: (a) that eyewitnesses routinely overestimate the duration of relatively short, stressful events lasting a few minutes or less; and (b) that memory is malleable and that eyewitness testimony can be affected by post-event information. The trial court concluded that People v. LeGrand, 8 N.Y.3d 449 (2007), and its progeny only permit the introduction of expert psychological testimony on the fallibility of witnesses’ ability to identify faces but not on their ability to identify the duration of a stressful event or other details of an incident. There is no basis for the imposition of such a per se rule. The general standard governing the admissibility of expert testimony set out in People v. Cronin, 60 N.Y.2d 430 (1983), should govern. Dr. Penrod’s testimony easily met that standard. Dr. Penrod’s opinions satisfied Frye, and his testimony would have given “jurors more perspective than they get from ‘their day-to-day experience, -8- their common observations and their knowledge.’” People v. Young, 7 N.Y.3d 40, 45 (2006). And there can be no doubt that Dr. Penrod’s testimony was important to the defense and relevant to a central issue in the case. See Point I.B, infra. 3. The trial court’s refusal to permit the defense from using its witness’s prior exculpatory statement to refresh the witness’s recollection - Before trial, an eyewitness, Megan Flynn, gave a statement to an investigator working for the brewery restaurant’s insurer that from the time she first witnessed the incident, she saw Tony hold Reister for only 6 to 10 seconds. A6729. Flynn was originally scheduled to be called as a prosecution witness until she was dropped at the last minute. But when the defense called her to the stand, Flynn - who had prepared with the prosecutors before she testified but refused to even talk to the defense - said that she saw Tony hold Reister for “a minute or so. I don’t know.” A3817:3-9. The defense then sought to use Flynn’s prior recorded statement to refresh her recollection, which the trial court refused to permit. If Flynn had been called by the prosecution, she could have been cross-examined on her earlier statement. But capitalizing on its obvious tactical gamesmanship, the prosecution objected and the trial court went along. Notwithstanding Flynn’s equivocal and surprise testimony, the trial court held that Flynn’s testimony did not indicate that she needed her recollection refreshed. The trial judge then sua sponte ruled that the defense was impermissibly seeking to -9- impeach its own witness in violation of CPL 60.35, a 1970 statute that codified the common law party witness rule. Both of those rulings were wrong. The defense plainly should have been permitted to use the interview to refresh Flynn’s recollection: she gave equivocal testimony that stood in direct contrast to a prior recorded statement that she freely gave at a time closer to the incident. And even if her testimony were not equivocal, the defense should have been permitted to use the insurance interview under the “surprise” doctrine, which permits a party to use a prior statement to refresh the recollection of its own witness if the witness gives surprise testimony. The doctrine gives the witness the opportunity to conform his or her testimony to the prior statement and, if the witness does not do so, at least gives the jury a basis to understand why the witness was called in the first place. Prince, Richardson on Evidence § 6-214 (Richard T. Farrell ed., 11th ed. 1995). Indeed, if the trial judge’s conclusion that an attempt to refresh a witness’s recollection with a prior statement necessarily constitutes “impeachment” for purposes of CPL 60.35 were correct, the statute would be unconstitutional both on its face and as applied. Chambers v. Mississippi, 410 U.S. 284, 296 & n.8 (1973), concluded forty years ago that the party-witness rule - a rule that has been abandoned in federal court and abandoned or sharply curtailed in every other state - “bears little present relationship to the realities of -10- the criminal process” and is “archaic, irrational, and potentially destructive of the truth-gathering process.” How true that was here. See Point I.C, infra. * * * In addition to these significant evidentiary issues, the conviction must be thrown out for three more reasons: 4. The denial of Tony’s constitutional and statutory right to an impartial jury - The jury that convicted Tony included a juror, F.O., whose son was arrested in the middle of jury deliberations. F.O.’s son was being prosecuted by the same D.A.’s office prosecuting Tony. After the trial verdict was reached, F.O. - who up until her son’s arrest was the holdout juror for acquittal and who was identified as such to the prosecution - voluntarily came forward immediately after the verdict was rendered and swore in an affidavit that she changed her vote from not guilty to guilty because she was “terrified” that if she voted to acquit, the D.A. would take it out on her son. A53-68. F.O. was, in a word, biased against the defense, biased by an extra-judicial event. A second juror, T.B., was biased as well. She violated her oath to keep jury deliberations secret, lied to stay on the jury when she was caught doing so and took a job with the Suffolk County Police Department during the course of the trial. See Point II, infra. -11- 5. The violation of Tony’s constitutional right to remain silent and other misconduct in summation - The prosecutor argued to the jury in summation three times that the jury could not find that Tony acted out of fright or panic in response to the bouncer’s attack 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” and then added: “I don’t recall anyone testifying to him being in fear or panic.” A5528:25-5529:8; A5560:16-22; A5617:7-13; A5529:4-6. But the only person who could testify about Tony’s state of mind was Tony. Thus, by arguing that there was no evidence “from the witness stand” to establish that Tony was frozen in panic from Reister’s unprovoked attack, the prosecutor improperly penalized Tony for invoking his constitutional right to remain silent. This blatant violation of Tony’s Fifth Amendment right was compounded by her repeated and flagrant effort to inflame the jury by referring to Reister’s wife and children and his “act of kindness” in donating his organs even after she was directed not to do so. See Point III, infra. 6. The trial court’s refusal to give an intoxication charge - Two experienced police officers independently documented in official post-arrest police records that Tony was intoxicated. A6704-6706; A6709-6710. This evidence, standing alone, establishes that Tony was entitled to an intoxication charge. See Point IV, infra. -12- QUESTIONS PRESENTED 1. Whether the trial court should have stricken the Deputy Medical Examiner’s opinions that Tony must have applied force for 2 to 4 minutes and that Reister’s pre-existing medical conditions played no role in his death? The Second Department found no error, notwithstanding the fact that the Deputy’s novel opinions were contradicted by generally accepted medical principles and were not reliable. CA3. 2. Whether the trial court should have permitted the defense to introduce expert testimony that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less and that eyewitness testimony can be affected by post-event information when the duration of the incident was one of the central disputed issues at trial? The Second Department did not specifically address this question. CA4 (“The defendant’s remaining contentions are without merit or do not require reversal.”). 3. Whether the trial court violated Tony’s right to present a defense when it ruled that the defense could not use a prior statement by an eyewitness called by the defense to refresh the witness’s recollection and ruled further, sua sponte, that CPL 60.35 precluded the defense from using the prior statement? The Second Department did not specifically address this question. -13- CA4 (“The defendant’s remaining contentions are without merit or do not require reversal.”). 4. Whether Tony was denied his constitutional right to an impartial jury by the participation of two biased jurors? The Second Department did not specifically address this question. CA4 (“The defendant’s remaining contentions are without merit or do not require reversal.”). 5. Whether the prosecutor violated Tony’s constitutional rights and deprived Tony of a fair trial by repeatedly and intentionally referring in her summation to the fact that Tony had invoked his right to remain silent and by engaging in additional serious misconduct in her summation? The Second Department dismissed all of the defense’s objections to the prosecutor’s misconduct with the generic ruling that the prosecutor’s arguments were “fair comment on the evidence, responsive to arguments and theories presented in the defense summation, or harmless error.” CA4 (internal citations omitted). 6. Whether the trial court erred when it refused to give the jury an intoxication charge? The Second Department found no error, notwithstanding that two police officers wrote in official police records that Tony was intoxicated and the significant additional evidence that Tony was intoxicated. CA3-4. -14- JURISDICTIONAL STATEMENT On March 29, 2013, Associate Judge Eugene F. Pigott, Jr. of this Court granted leave to appeal pursuant to CPL 460.20. CA1. The Questions Presented by this appeal are all questions of law preserved for this Court’s review: • Question 1: A3918:13-3919:2 (record objections); A616-643 (motion to strike); A4483:16-22, 4541:10-4544:15 (denial of motion to strike); A19-48 (motion to set aside the verdict); A11-17 (order and decision denying motion to aside the verdict). • Question 2: A4841:24-4846:9, 5092:14-5093:22 (initial application to admit Dr. Penrod’s testimony); A7132-7145 (proffer of Dr. Penrod’s testimony); A4849:10-4850:12, 5095:2-13 (record rulings denying application to admit); A8-10 (order denying motion to admit). • Question 3: A3817:3-3819:16 (record objection and bench ruling). • Question 4: A5958:10-5959:4, 5963:2-5965:18 (first application for discharge of T.B.); A5959:19-5963:2, 5965:19-5967:1 (denial of first application to discharge); A5989:20-5993:16 (renewal of first application to discharge); A5994:7-23 (denial of renewal of first application to discharge); A5995:1-5997:5, 6003:23-6004:21 (second application for discharge of T.B.); A6001:20- 6003:22, 6004:22-6005:13 (denial of second application to discharge); -15- A18-48 (motion to set aside verdict); A11-17 (order and decision denying motion to set aside verdict). • Question 5: A5624:2-5625:2 (request for curative instruction and bench ruling denying the request). • Question 6: A5183:20-5185:18 (request to charge); A5232:13-5234:3 (bench ruling denying request to charge). -16- STATEMENT OF FACTS A. Ladies Night at the Publick House: August 6-7, 2008 The evening of August 6, 2008, Tony Oddone met a friend, Adam Cargill, Adam Rothschild (Cargill’s friend), and another friend at Cargill’s rental home in Southampton. Tony, Cargill and the other friend were working that summer as caddies at a local golf club. The group decided to go to the Publick House, a Southampton brewery restaurant. It was Ladies Night, and in the height of the summer season there would be a good crowd. A1140:4-10 (Cato). The Publick House has three rooms, two of which are used for Ladies Night. (The third room is used for the restaurant.) One of the rooms is known as the Tap Room; the other is simply called the Bar. The Tap Room has three low cocktail tables along one wall that is lined with banquettes.2 Tony and his friends arrived at the Publick House some time before 11:30 p.m. The friends situated themselves in the Tap Room where they played a drinking game called “quarters.” A2979:12-2980:20 (Fallo). Rothschild had his digital camera with him and someone started taking pictures. The pictures show four friends having a good time on a summer night in the Hamptons. A6713; A6138-6142, 6212-6215. 2 A6104; A6133-6136; A6146; A6762; A6976. -17- The Publick House was packed, with around 200 patrons. At various points during the evening, several young women, who were not known to Tony or his friends, got up on the low cocktail tables in the Tap Room to dance. No one stopped them.3 At around 1:00 a.m., Tony and Cargill joined the fun. Cargill hopped up on the first table, the one adjacent to the exit from the Tap Room to the outdoors, to dance with a young woman from The Netherlands named Merel Beelen. Tony got up on the second table, just opposite a loudspeaker, to dance with Natalya Yeremina, Beelen’s friend. Yeremina, a 20-year-old from Kazakhstan, was working in the Hamptons that summer as a waitress at the same tennis club where Beelen worked.4 Rothschild’s camera was used to take pictures of the party scene. The last picture taken at 1:07 a.m. shows a smiling Cargill with a beer in his raised hand on the first table, with Tony and Yeremina dancing atop the second table in the background.5 3 A1506:14-1507:3 (Baugher); A2198:17-22 (Muthig); A997:3-7 (Beelen); A1182:23- 1183:10 (Cato); A2050:25-2051:7 (Bekmetova); A2892:16-2893:11 (Fallo); A4309:3-9 (Reiner). 4 A992:14-994:11, 1005:8-1006:13 (Beelen); A2056:1-2058:17 (Bekmetova); A2302:23- 2304:19, 2313:6-2314:4 (Yeremina); A6138; A6139. 5 A6138; A4836:23-4837:2 (Higgins); A2605:20-22, 2607:24-2608:7 (Fitzpatrick); A2056:25-2058:21 (Bekmetova). -18- B. Reister throws Tony off a table and Tony defends himself from the attack by the much larger man. Some time shortly after the last picture was taken, Andrew Reister, an off-duty correction officer working as one of the four bouncers that night, approached the first table, the one with Cargill and Beelen, and ordered them to get down.6 Though the owner of the Publick House denied it, apparently the Publick House had a “rule” that only women could dance on tables, a rule that was not written and that Tony had no reason to know about.7 Reister stood 6’4” and, according to Dr. Wilson, weighed approximately 250 pounds.8 Reister wore nothing that identified him as security; he wore jeans, sneakers and a short-sleeved blue polo shirt with a small logo reading “Southampton Ales and Lager” on one sleeve. The shirt is similar to shirts the Publick House was selling to the public.9 (Tellingly, after the incident, recognizing that patrons could not readily identify its staff, the Publick House 6 A1005:8-1006:1 (Beelen); A2059:10-22 (Bekmetova); A3039:23-3040:16 (Almeida). 7 A4771:11-15, 4775:14-24 (Sullivan); A2862:6-19 (Pacella); A4302:7-25, 4345:2-24 (Reiner); A3301:22-3302:5 (J. Reister). 8 A4052:23-4053:10. See also A1465:12-15 (Baugher); A6059 (Reister weighed approximately 255 pounds) (prosecution at sentencing). 9 A5054:4-10 (Cohen); A6108; A6699; A6703; A4300:13-4301:16 (Reiner). -19- decided to uniform its bouncers with orange shirts with the word “STAFF” clearly emblazoned on the back in large letters.10) After a while, Cargill and Beelen got down off the first table. Reister then went over to the second table and approached Tony and Yeremina.11 According to Larisa Bekmetova, Yeremina’s friend, Reister went towards the deejay booth after addressing the pair and then returned to the second table, the one where Tony and Yeremina were still dancing. A2109:16-2111:24. The music was extremely loud, and witnesses who were in the immediate area could not hear what, if anything, was said.12 But Yeremina, who was right next to Tony on the table, testified that Reister never asked her to get down; that she heard Tony ask Reister “Do you work here?”; that Reister said “yes”; and that, before Tony could react, Reister pushed Tony off the table. A2315:20-2318:17. Indeed, every eyewitness who saw the beginning of the incident agreed with Yeremina that Reister was the aggressor. Depending on the witness, Reister grabbed, pushed or punched Tony off the table toward the banquette. Tony 10 A2795:20-2796:12 (Pacella); A4334:7-4335:25 (Reiner). 11 A1004:6-11 (Beelen); A3041:19-3042:5 (Almeida); A2059:10-22 (Bekmetova); A2315:20-2316:18 (Yeremina); A5051:4-5052:8 (Cohen). 12 A1081:10-14 (Beelen); A2060:12-17 (Bekmetova); A5053:10-19 (Cohen); A4994:4- 4995:10 (Leader). -20- did nothing to instigate this violent attack - he did not throw a punch and did not threaten Reister with physical force of any kind.13 After Reister hurled Tony off the table, the two wound up on the banquette, with Reister falling on top of Tony. The two then stood up and grappled in the middle of the Tap Room floor.14 The prosecution’s theory was that Tony was able to get behind Reister and put him in a neck hold with his right arm. Because Reister was so much taller than Tony, some eyewitnesses said that Tony appeared to be almost riding piggy-back on the much, much larger man.15 According to Dr. Wilson and the prosecution, Tony’s right elbow pointed away from Reister’s windpipe, his bicep compressing the right side of Reister’s neck, his forearm compressing the left.16 At some point, Tony and Reister fell to the floor, breaking a table on the way down. One prosecution witness described Reister going down “really hard” “like a tree.” A1155:8-19 (Cato). 13 A2318:15-2319:2 (Yeremina); A4995:11-4996:11 (Leader); A5055:17-5057:2 (Cohen); A1313:11-17 (Goucher); A2061:20-2062:6, 2064:18-23 (Bekmetova); A3047:13-17, 3161:23- 3162:19 (Almeida). 14 A2356:20-2357:6 (Yeremina); A5018:15-21, 5024:5-16 (Leader); A5056:18-5057:2 (Cohen); A1009:13-1010:8 (Beelen). 15 A1192:5-17 (Cato); A1464:17-24 (Baugher); A2389:1-9 (Everhart); A2239:16-2241:7 (Muthig). 16 A3656:25-3661:16 (Dr. Wilson); A1475:17-1476:2 (Baugher); A2389:1-9 (Everhart); A5581:24-5582:12 (prosecution summation). -21- When the two first hit the floor, some bystanders stood back to watch what they thought was a continuation of the fight. As one eyewitness put it: “They were like, Let ‘em alone. Let them man it out.”17 After some period of time elapsed, some of the bystanders realized that Reister did not appear to be fighting back and sought to break it up by kicking, punching and pulling Tony.18 Tony did not strike, punch or kick Reister while they were down on the floor; he just held on to the headlock.19 While certain prosecution witnesses claimed that they yelled at Tony to stop or heard others doing so, the testimony was highly inconsistent over what, if anything, was said and, if anything was said, whether it was loud enough or clear enough to be understood.20 The one thing that was consistent was that there was a 17 A5060:11-25 (Cohen). See also A2065:2-2066:1 (Bekmetova) (“of course the guys start coming to the fight scene”); A2741:15-21 (Pacella) (“I saw what seemed to be like a circle of people, about a dozen people”); A1423:24-1425:1 (Goucher) (there was circle of 20 people standing around watching the incident). 18 A2755:1-4, 2758:5-7, 2831:1-5 (Pacella); A2393:14-2394:8, 2401:8-2404:3 (Everhart); A1162:17-18 (Cato); A1476:23-1477:9 (Baugher). 19 The prosecution claimed in summation that Tony “readjusted that hold, that chokehold, on the ground” and that this evidenced an intent to kill. E.g., A5579:25-5580:2. That was a blatant mischaracterization of the record. Not a single witness testified that Tony readjusted the hold he had on Reister after they hit the ground. See A2175:7-9 (Muthig) (“He then readjusted his body, not the chokehold, on the victim and continued to hold.”); A1019:9-18 (Beelen) (Tony maintained the same hold throughout the incident); A1157:1-5, 1193:14-16 (Cato) (same); A1525:4-21 (Baugher) (same). 20 A1024:6-12 (Beelen) (“I heard sounds but nothing in particular. Q. Did you hear any screaming and yelling? A. Yes. Q. Could you make out any of the words? A. No, I did not.”); A1160:20-1161:5, 1196:12-1197:13 (Cato) (“Q. You were screaming something. So you could hear what you were screaming but you couldn’t hear what anyone else was saying or doing or -22- huge din from the music and yelling, with “glasses breaking,” “girls screaming” and “furniture . . . screeching.”21 The other thing that was consistent from the prosecution witnesses was that Tony did not respond to the attacks he was facing from all sides.22 One eyewitness, John Cato, who claimed that he yelled “hey dude, you’re fucking killing him,” testified that his comments did not register with Tony. Recognizing that Tony did not comprehend what was happening, Cato even hit Tony in the head “to try to have him wake up, [and] realize what he was doing.” A1174:3-10. The incident ended when Tony’s friend, Cargill, was able to get through to Tony that it was safe to let go. At that point, Cargill said to Tony, “Let’s get outta here,” and the two exited through the nearby doors to the street. Cargill put Tony in a waiting cab and told the driver to take Tony back to Cargill’s (footnote continued) screaming, right? A. Correct.”); A2505:2-20 (Everhart) (“When I was in the room at that time I don’t remember hearing, I don’t have a sense of sound or what people were yelling. I couldn’t even tell if there was music playing . . . all that I remember hearing is my own [voice]”); A4998:18-4999:7 (Leader) (“Q. [D]id you hear people screaming and yelling anything? A. Nothing that struck me. Q. Did you hear people screaming and yelling, ‘Let him go, you’re killing him?’ A. No.”). 21 A1142:12-22, 1191:8-16 (Cato); A2172:23-2173:3 (Muthig). 22 A2830:18-2831:7, 2832:8-19 (Pacella); A1535:12-1536:1 (Baugher); A1071:17-1072:24 (Beelen); A2289:11-2290:6 (Muthig). -23- home.23 Reister lay motionless on the floor, and eyewitnesses observed that his face had taken on a deep purplish appearance.24 C. The prosecution’s evidence established that the entire incident took substantially less than 2 minutes and 45 seconds. As Tony and Cargill were exiting the Tap Room, the first 911 call was placed to the Southampton Village Police. That call was received at 1:12 a.m.25 Thus, only five minutes had elapsed between 1:07 a.m., when the last picture was taken with Rothschild’s camera, and Tony and Cargill’s departure. But the incident, beginning to end, was without question significantly shorter than that. At trial, the deejay who was spinning that night, Paul Fallo, played “Calabria,” the 6 minute and 30 second dance song that was blaring during the incident. While on the stand, Fallo stopped the song at the points that marked his movements, and the time elapsed was then noted by the courtroom technician. Based on this reconstruction, Fallo testified that he left the deejay booth when the 23 A2836:12-16 (Pacella); A3073:12-15 (Almeida); A5061:12-19 (Cohen); A1968:10-25 (Abbes). While the prosecution sought to portray this as Tony “fleeing” the incident, it was no such thing. Cargill put Tony in the cab and told the driver to take Tony to Cargill’s home, where Tony had planned to spend the night, as he had before. A1653:24-1654:15, 1941:18-1942:12 (Rodecker); A828:22-829:14 (Lamison). Neither Cargill nor Tony had any way of knowing whether someone would pursue Tony to finish things off outside. In short, Tony acted just as one would expect of any individual after being attacked in a bar, or anywhere else: he wisely and quickly left. 24 A2067:17-2068:4 (Bekmetova); A3084:7-14 (Almeida); A3833:15-17 (Flynn). 25 A2405:3-15 (Everhart); A1564:13-24 (Petry). -24- lyrics to the song started, 1 minute and 5 seconds into the record. A2958:10-18; A6221. It then took Fallo approximately 30 seconds to make his way through the crowd in the Tap Room and get to the outside. Along the way, he passed the first table where Cargill and Beelen were dancing and saw Reister first approach them to order them to get down. A2965:4-2966:8, 2907:3-21. As he stood outside talking to friends, Fallo heard a ruckus going on inside. Using the record as his stopwatch, Fallo testified that he reentered the Publick House 4 minutes and 18 seconds into the song, just as Tony and Cargill were leaving through a nearby exit. A2908:11-16. Thus, Fallo left the Tap Room at approximately 1 minute and 35 seconds into the song, and returned to the Tap Room at 4 minutes and 18 seconds into the song. The prosecutor asked Fallo this same question 3 times and 3 times he gave the same answer: he re-entered 4 minutes and 18 seconds into the song. A2908:19-23. On Fallo’s testimony, the elapsed time from when Reister first approached Cargill and Beelen until Tony left the premises was just 2 minutes and 45 seconds. But even that time calculation significantly exceeds how long the entire incident could have lasted. Fallo left the Tap Room just when Reister was first approaching Cargill and Beelen. A2961:15-2962:3. Some meaningful amount of time must have elapsed from when Reister first approached Cargill and Beelen, got them to come down off their table, made his way to the second table -25- with Tony and Yeremina, had some kind of exchange with the two, left the second table and walked towards the deejay booth, returned to the second table, said something to the pair, threw Tony off the table, grappled with Tony on the banquette, continued to grapple with Tony in the middle of the Tap Room, and then fell to the floor, breaking a table on the way down. Indeed, Fallo’s direct testimony so severely undercut the prosecution’s theory of the case that the prosecution tried to get Fallo to change it by replaying the song and going through the entire exercise again. A2909:16-20. But Fallo stood by his testimony. A2997:14-2999:13.26 D. Additional evidence confirmed that the entire incident was fleeting. And still more evidence establishes just how fleeting the whole incident had to have been. The Tap Room is visible from the Bar through two open passageways, each approximately 6 feet wide. A6133; A6136; A6748. Brant Reiner, a prosecution witness working security that night with Eric Wessler, testified that he and Wessler were standing in the Bar just 20 feet away from the incident, and that they were in a position to see into the portion of the Tap Room 26 The ADA even tried to coach Fallo to change his story while he was on the stand, suggesting to him that he was confused. A2909:16-22. Fallo was not confused. Questioned on the same subject again on cross-examination, Fallo agreed that when he testified about the timing of his movements relative to the song, he was “trying to tell the truth the best way [he] possibly can.” A3000:3-8. -26- where the incident occurred. But the two were completely oblivious to anything happening until the music stopped and the lights came on. A4309:3-4310:14 (Reiner). It is inconceivable that these two bouncers could have been standing just 20 feet away while Tony supposedly held Reister unconscious for 2 to 3 minutes, with onlookers supposedly screaming for Tony to let go, without knowing that something was going on. They were being paid to pay attention and maintain order. The only reasonable inference is that Reiner and Wessler did not become aware of the incident when it happened because it happened so quickly. Two defense eyewitnesses - both total strangers to Tony - confirmed the speed with which the incident took place. Critically, neither witness was known to the prosecution and, as a result, the prosecution did not have the opportunity to coach them before they testified. Kira Leader, who was seated in the Tap Room near the table where Tony and Yeremina were dancing, testified that after Reister threw Tony off the table and they both fell to the ground, the two were on the floor for no longer than 30 seconds. A5024:9-23. And because of Reister’s size and the violent manner in which he attacked Tony, when Leader heard someone yell at the end of the incident, “He’s not breathing,” she assumed that Tony, not Reister, had been injured. A5024:24-5025:9, 5021:19-5022:14. -27- Shamir Cohen was with Leader that night and was also seated near the table where Tony and Yeremina were dancing. A5058:5-10 (Cohen). Cohen testified that less than one minute elapsed from the time Reister first approached the table where Tony and Yeremina were dancing until the incident ended and Tony left the room. A5066:9-17. Cohen described seeing Reister “knock[] the guy [Tony] to the ground, it was, like, extremely fast, extremely aggressive. I was pretty shocked.” A5057:3-13. E. Defense witness Megan Flynn changes her story after meeting with the prosecution. The third defense witness, Megan Flynn, is a story in herself. A friend of Reister, she worked as a waitress at the Publick House. She stayed on that night to hang out with friends after her shift ended. A3789:24-3790:14. Detectives interviewed Flynn after the incident, but did not ask her for a statement. A3820:24-3821:25. It is inconceivable that the detectives did not ask Flynn the obvious, critical question: how long did the incident last? Whatever her answer, it was not recorded by the police. A7083-7087, 7104-7108. But someone else did record Flynn’s answer. Flynn was interviewed by an investigator working for the Publick House’s insurer. In that interview, Flynn stated that she was standing immediately outside the Tap Room talking to friends, and that when she noticed that an altercation had broken out, she went in to -28- see what was happening. She told the investigator that from the time she entered the Tap room to the time Tony left, Tony held Reister for only 6 to 10 seconds.27 The prosecution had a copy of the interview. A2458:8-12; A6729. During the trial, the prosecution repeatedly claimed that it would call Flynn as a witness. A2039:12-2040:9, 3077:13-15. In fact, it flew Flynn back from Florida, where she was attending school, in order to prep her and put her on the stand. After meeting with the prosecution, Flynn refused to be interviewed by the defense. A3785:15-3787:4; A4030:4-22 (colloquy); A5323:6-14 (summation). The prosecution then announced that it would not call Flynn as a witness. A3355:9-16. In light of Flynn’s prior recorded statement, the defense then called Flynn as its own witness. A3355:17-3359:20; A4030:17-22. The defense asked Flynn how long the incident lasted. Walking away from her prior statement, she testified: “I didn’t have a watch. I wasn’t keeping track of time. But it could have been a minute or so. I don’t know.” A3817:3-9. When asked whether she had ever discussed how long the incident lasted with anyone from the prosecution, Flynn was evasive: “It may have come up in discussion.” A3820:14-18. Despite this vague and uncertain testimony, and despite the fact that it was apparent that Flynn had been coached, the trial court refused to permit the 27 A3794:22-3796:22, 4029:18-4032:4; A6729 (recorded interview). -29- defense to use the insurance statement to refresh Flynn’s recollection. The court also refused to permit the defense to lay a foundation for the admission of the insurance interview as a past recollection recorded. A3817:14-17, 3820:8-13 (Flynn); A4029:18-4033:17. As discussed below, this was plain error that deprived Tony of critical evidence in support of his defense. F. Officer Rodecker and Detective Nordt: Tony was intoxicated. The cab taking Tony back to Cargill’s home was stopped at 1:15 a.m., less than one mile away from the Publick House. Before he even got out of the cab, Tony told the arresting officer, John Rodecker, “It was self defense.” A1637:5-12. Rodecker then asked Tony to get out of the cab, handcuffed him and placed him in the back of his cruiser. A6193; A1628:1-8, 1637:5-1638:25, 1929:8-1931:4 (Rodecker). Approximately 30 minutes after the stop, Rodecker drove Tony to the Southampton Village Police Station, only one mile away. A1642:22-1644:5 (Rodecker). When they got there, Rodecker filled out a prisoner activity log, writing by his own hand that Tony was “intoxicated.” A6704-6706; A1650:17-1651:6 (Rodecker). At trial, Rodecker - an experienced officer who had made at least 50 arrests for drunk driving - conveniently changed his story and claimed that this was a mistake: Tony was not intoxicated, he just smelled of alcohol. A1646:23-1647:7. -30- But a second Southampton Village officer, Detective Nordt, who observed Tony at 5:00 a.m., filled out a second report in which he too recorded that Tony was under the influence of alcohol or drugs. A6709-6710; A1862:9-14, 1909:23-1912:21 (Rodecker). Detective Nordt was not called by the prosecution to disavow his report, which was admitted as a business record. A6709-6710; A1864:6- 1870:9, 1877:22-1878:2 (Rodecker). G. Tony is ultimately charged with murder, second degree in an extraordinarily hostile atmosphere. Reister was brought to Southampton Hospital. There his heart was restarted, but tragically, his brain had been deprived of oxygen for too long, and, as a result, he had virtually no neurological response. A3623:24-3627:1 (Dr. Wilson); A6245-6251, 6316-6317. Media reports appeared the day of the incident, August 7, 2009. A560-561. The Southampton Village Police Department issued a press release that omitted the fact that Reister had instigated the incident by attacking Tony. A6694-6695. Tony was arraigned that day in Southampton Village Justice Court, charged with first-degree assault. In that very first proceeding, the prosecution made the false accusation that Tony had choked Reister to death by cutting off his air supply and the flow of blood to his brain. A7249:10-14. The court set bail at $500,000. Given Reister’s position as a Suffolk correction officer, Tony was -31- immediately sent away to Rikers Island to be held in protective custody there. A7252:23-7253:2; A7266:11-17. Reister died of his injuries on August 9.28 On August 20, Tony was charged with murder, second degree and arraigned on the new charges before Justice C. Randall Hinrichs, then a County Court Judge. Law enforcement support for the prosecution was already fully mobilized. Approximately 75 uniformed correction officers “packed” the courtroom - “so many that the courtroom was filled to capacity, and many of the officers were forced to wait outside.” Outside the courthouse, “more than 150 officers” rallied in support of the prosecution. Suffolk County D.A. Thomas Spota spoke at the rally outside of the courthouse and commended the officers: “I’ve been around a long time and I’ve never seen such overwhelming support.” A555-556 (“Strength in numbers; Massive support for wife of slain correction officer as suspect pleads not guilty to upgraded charges”); A551-554.29 28 A3623:24-3627:1 (Dr. Wilson); A6245-6251, 6316-6317. 29 The animosity against Tony was so great that from the time of his arrest until shortly after sentencing, Tony was held in protective custody at Rikers Island because the Suffolk County Sheriff’s Department could not guarantee his safety in the facility where Reister had worked. The night of October 16, the one night that Tony did not spend in Rikers because, without notice to anyone, the Suffolk County correction officers decided to move Tony to the Nassau County Correctional Facility, Tony was severely beaten in an incident attributed to inmates “and others.” In light of this assault, Tony was moved back to Rikers to keep him safe. A8251:14-8253:21, 8260:3-7. -32- The correction officers maintained their campaign of pressure throughout pretrial proceedings, as they fulfilled their union president’s pledge that officers “would show up in great numbers to every court date as the case against Mr. Oddone continues.” A557-559. Intense media coverage of the case continued through the trial as well, with reports on Reister’s good character and the impact of his death on his family. A597-598; A604-606; A608-610. H. The medical testimony contradicted the central theme of the prosecution’s case. The one word that the prosecution used over and over and over in the trial was “choke.” The prosecutor used the word “choke,” “choked,” “choking” and “choker” 34 times in her opening statement alone.30 Tony was referred to by the prosecutor as “the choker” throughout the trial.31 The fundamental problem with the entire “choke,” “choker,” “choked” theory of the prosecution’s case was that Reister was not choked to death. And the prosecution knew that. Its own witness, Deputy Medical Examiner James Wilson, testified that Reister did not die from blockage of his airway or of 30 A657:25, 658:3-9, 660:4, 660:17, 664:14, 664:24-25, 665:1-8, 666:3, 666:12, 666:18-21, 667:1, 668:4, 669:1, 669:18, 670:9, 673:18, 675:24, 676:1-8. 31 E.g., A1016:9-10, 1018:10-11, 1019:9-11, 1025:3-5, 1027:1-4, 1028:20-23, 1171:10-12, 1477:17-24, 2182:5-6, 2392:23-24, 2393:8-9, 2399:8-13, 2751:21-23, 2752:22-24, 2753:4-5, 2760:15-17, 2761:3-6, 2762:5-6, 2768:1-2, 2770:8-11, 2770:15-16, 2866:17-18, 3065:25, 3656:25-3657:8, 3661:20-3662:4, 3664:4-15, 3672:3-8, 3693:4-11, 4064:18-22, 4674:21-22, 4675:16-17. -33- the flow of blood to his brain. Dr. Wilson admitted that, both in medical terms and common parlance, Reister’s death did not result from “asphyxiation” or “choking.” A3845:25-3847:14. So on this there was no dispute. There was also no dispute about what Reister did die from. Again agreeing with the defense, Dr. Wilson testified that Reister died from the compression of his carotid sinus, nerve receptors on each side of the neck located at the point where the carotid arteries branch (bifurcate) into two smaller arteries. A3651:11-3652:15. Compression of either of these nerve receptors sends a signal that causes the heart to slow down or even stop. According to Dr. Wilson, this reflex action - similar to the reflex that occurs from a tap on the knee - can cause the heart to stop in no more than 10 to 15 seconds. A3741:10-20, 4081:14- 4082:16. On this, too, there was no dispute. I. Dr. Wilson’s assertion that Reister’s carotid sinus nerve must have been compressed for 2 to 3 minutes is contradicted by accepted medical principles. But there the agreement ended. Citing his “personal experience,” conversations with unidentified “other individuals,” a single unspecified presentation by a former police officer, and “[p]erhaps seeing something on television,” Dr. Wilson claimed that in order to cause death, continuous or intermittent pressure of the carotid sinus would have to be applied for 2 to 3 minutes. A3690:14-19, 3691:4-8, 3848:23-3850:19. According to Dr. Wilson, if -34- the compression were applied for a shorter period of time, Reister’s heart would necessarily have restarted. A3688:2-3691:15; A3696:21-3697:14. The two defense experts - Dr. Daniel Spitz, an editor of the nation’s leading treatise on forensic medicine, and Dr. John Kassotis, a distinguished cardiologist on the faculty and staff at SUNY Downstate who specializes in the treatment of heart arrhythmias - both testified that Dr. Wilson was just plain wrong. Both testified that while the heart typically will restart when the carotid sinus pressure is released, a fatal arrhythmia can be induced in 10 to 15 seconds or less - that once the heart stopped, it would not necessarily restart itself successfully. A4634:12-22, 4635:23-4636:16 (Dr. Spitz); A4950:25-4951:9, 4979:14-25 (Dr. Kassotis). And both testified that the likelihood of this happening increases if the individual has any one of a number of preexisting conditions.32 Reister suffered from six of them. He had been hospitalized in May 2005 for unstable angina. Over the following years, he was diagnosed with (1) premature ventricular contractions or “PVCs,” (2) hypertension, (3) an enlarged heart, (4) severe sleep apnea and (5) fainting and was classified as (6) clinically obese. According to the experts, these six conditions are all associated with sudden cardiac death and 32 A4629:22-4630:9, 4631:17-4632:9, 4632:23-4633:7, 4633:11-4634:22 (Dr. Spitz); A4951:10-4952:7 (Dr. Kassotis). -35- predisposed Reister to suffer a fatal arrhythmia from compression of his carotid sinus.33 As a result, Reister died of a hold that in a healthy person with no preexisting conditions likely, but not necessarily, would have been benign. According to Dr. Kassotis, an individual whose heart is stopped for as long as even two minutes would have an 80% chance of surviving. But in Reister’s case, stimulation of the carotid sinus threw his heart into a fatal arrhythmia. A4980:7- 13, 4937:20-4940:16, 4950:25-4952:20. His heart could not regain a normal rhythm. A4937:20-4939:25 (“And if your heart is predisposed and you have risk factors your ability to accommodate these changes to rebound from them is less.”). Dr. Spitz agreed. A4633:8-4634:10 (Q: “Meaning, in a normal healthy heart might you more easily regain a normal rhythm?” A: “I certainly think so, yes.”), A4758:11-20 (“The unfortunate outcome here is explained by” Reister’s underlying heart disease). This cannot be written off as one in which a jury legitimately was asked to choose between battling experts. Dr. Wilson’s assertion about how the human body reacts to the stimulation of the carotid sinus nerve is not accepted in 33 A4892:4-4895:19, 4951:10-4952:20, 4980:7-4981:3 (Dr. Kassotis); A4582:14-4589:20, 4600:8-4604:16, 4629:22-4634:22, 4759:11-20 (Dr. Spitz). See also A77-79 (Dr. Andrew); A90-91 (Dr. Decter); A97-98 (Dr. Fierro); A166-168 (Dr. Kassotis); A276 (Dr. Perper); A307- 308 (Dr. Spitz); A331 (Dr. Wecht). -36- the medical community and is not based on any accepted scientific principle. Dr. Wilson denied having any expertise in cardiology six separate times. “You’d have to ask a cardiologist,” was his standard response.34 Despite this admitted lack of expertise, he claimed that Reister’s preexisting conditions played no role in his death. A3990:15-25, 4010:22-4011:21. Indeed, Dr. Wilson acknowledged on cross-examination that he was aware of studies - including one in a medical journal that he considered to be authoritative - that showed that death from carotid sinus compression can be induced in a “[m]atter of perhaps seconds, just a brief period of time, a minute, something like that.” A3984:24-3985:10, 3947:20-3949:23. And Dr. Wilson himself came to the witness stand with copies of two medical articles he had studied before testifying that analyzed accidental deaths in police custody - deaths that did not result in any criminal prosecution - resulting from neck holds similar to and of the type Tony used.35 34 A3746:14-17 (“[I] don’t specifically study this field of cardiology”); A3752:17-3753:3 (“PVCs just how common are they, what various settings they occur you’d have to ask a cardiologist about that”); A3762:8-16 (“I’m not familiar with the pharmacology” of the common cardiac medication Reister was taking); A3848:8-22 (“I’m not familiar with” how carotid sinus stimulation is used in medical practice “because I don’t practice cardiology”); A3993:22-3994:3 (“if you want to ask that question and get an authoritative answer then ask a cardiologist”); A3998:23-3999:7. 35 A6671 (Donald Reay & John W. Eisele, Death from Law Enforcement Neck Holds, 3 Am. J. of Forensic Medicine and Pathology 253 (1987)); A6677 (E. Karl Koiwai, Deaths Allegedly Caused by the Use of ‘Choke Holds’ (Shime-Waza), 32 J. of Forensic Sci. 419 (1987)). -37- As Dr. Wilson admitted, the articles concluded that individuals with a preexisting cardiac rhythm disorder - people like Reister - are susceptible to fatal cardiac arrest from carotid sinus compression; in at least one case death resulted from just a few seconds of compression.36 But even though he brought these articles to the stand with him, Dr. Wilson simply dismissed them because he disagreed with their conclusions. A3983:4-3984:1, 3992:3-17, 4011:22-4012:17, 4084:23-4085:14. J. Dr. Wilson’s other opinions about the length of time that Reister’s neck must have been compressed are also contradicted by accepted medical principles. Dr. Wilson also offered two additional opinions to support the prosecution’s claim that Tony crossed the line from acting in self-defense to committing a crime because Reister’s neck was compressed for 2 to 4 minutes. • First, Dr. Wilson claimed that because Reister had petechiae - red spots caused by the bursting of small blood vessels in the skin - on and above (as opposed to under) his eyelids, Reister’s neck must have been compressed for “something in the range of 2, 3, 4 minutes.” Ac- cording to Dr. Wilson, it takes a “relatively long period of time” of (footnote continued) For the Court’s convenience, the medical, psychological and other legal authorities that are not readily available are reproduced in an accompanying Compendium. 36 A3977:25-3978:14, 3980:10-3984:9, 3989:8-3990:10, 3991:5-3992:17. -38- neck compression for petechiae to appear on the eyelids and perior- bital sockets. A3668:11-3670:19, 3673:9-3674:12; see also A3695:16-3696:10. • Second, he claimed that in order for Reister’s face to turn purple from neck compression, the duration of that compression “would be a mat- ter of a few minutes minimum, something on the order of 2, 3, 4 minutes.” A3693:25-3695:9; see also A3695:16-3696:10. Once again, however, these novel opinions are not based on accepted medical principles. On the question of petechiae, Dr. Wilson offered no basis for his opinion other than his own experience.37 Nothing in the medical literature and no medical principle supports the notion that petechiae on and around the eyelids can only form if blood pressure is increased for 2 to 4 minutes.38 The definitive article on the subject, by Doctors Hirsch and Ely of the New York City Medical Examiner’s Office, makes no such distinction and does not remotely suggest that it takes 2 to 4 minutes for petechiae to form.39 Dr. Wilson was unfamiliar with Drs. Hirsch and Ely’s article. A3914:8-21. 37 A3668:17-3669:13, 3673:17-24, 3693:25-3695:9, 3914:3-7, 3915:2-20, 3942:2-9. 38 A4634:23-4635:9 (Dr. Spitz); A79 (Dr. Andrew); A98 (Dr. Fierro); A274 (Dr. Perper); A331-32 (Dr. Wecht); A356 (Dr. Wetli). 39 A6967-6971 (Susan F. Ely & Charles S. Hirsch, Asphyxial Deaths and Petechiae: A Review, 45 J. of Forensic Sci. 1274 (2000)). -39- Dr. Wilson’s “purple face” claim was also without a shred of medical support. Again, the sole basis Dr. Wilson offered for his assertion was his own experience.40 Dr. Wilson was wrong. Accepted medical principles establish only that a “purple face” is caused by the presence of deoxygenated blood. If the heart stops pumping effectively, that can happen very quickly, and does not require 2 to 4 minutes of neck compression.41 K. The trial court refuses to permit Dr. Steven Penrod to testify. While the trial court permitted Dr. Wilson’s totally unsupported testimony to stand, it refused to permit the defense to call Dr. Steven Penrod, a Distinguished Professor of Psychology at John Jay College. See A8-10. Dr. Penrod would have testified that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less. A7134-7136. Indeed, this principle is so well-established that it has a name, “Vierordt’s Law,” a reference to Dr. Karl von Vierordt, the 19th century German physician who first studied and described the phenomenon. A7136. 40 A3693:25-3694:9, 3696:1-10, 3887:10-17, 3888:11-3889:6, 3894:18-23. 41 A4626:22-4629:8, 4633:10-4635:22 (Dr. Spitz); A77, 79 (Dr. Andrew); A88-89 (Dr. Decter); A98-99 (Dr. Fierro); A163-164 (Dr. Kassotis); A274-275 (Dr. Perper); A332 (Dr. Wecht); A357 (Dr. Wetli). -40- Dr. Penrod also would have testified that suggestive questioning, hindsight bias, exposure of one witness to the testimony of others, repeated questioning, confirming feedback, media reports, investigative interviews and other factors can influence memory. A7136. There was more than ample basis for expert testimony on this subject to help the jury understand why prosecution witnesses gave statements to the police characterizing the incident as Tony and Reister “grappl[ing],” with Tony and Reister “grasping” each other, or Tony holding Reister in an “embrace[]” or “headlock” and then, at trial, adopted the prosecution’s unceasing “choke,” “choker,” “choked” mantra.42 42 So, for example: (a) Beelen testified that she witnessed Tony “choking the bouncer holding both hands around his neck” and called Tony the “choker.” A1014:25-1015:10, 1026:7- 8. On cross-examination, she conceded that Tony did not use his hands to choke Reister, that the maneuver “was definitely a holding position” and that she had not called Tony the “choker” when she met with police immediately after the incident. A1067:8-18, 1102:16-21. (b) In his description of the incident to the police, Muthig characterized the hold as the two men “embracing” or “wrestling.” A2233:5-9, 2278:23-2279:3. On cross-examination, Muthig claimed that he would use the word “embrace” to describe “a guy choking another guy.” A2232:18-2233:4. Evidence that Muthig was exposed to post-event suggestion was revealed during cross-examination when Muthig admitted that in the course of three preparatory meetings with the prosecutor it was “brought to [his] attention” that he had used words like “wrestling” to describe the incident to the police. A2274:20-2279:25. (c) Goucher acknowledged on cross- examination that, in the statement he gave the night of the incident, he told the police that Tony and Reister were “grasping” or “grab[bing]” each other. A1365:16-1366:18. Even at trial, Goucher was subjected to post-event suggestion by the prosecutor, who asked him “So when you were giving that statement [that Tony and Reister were grasping each other] to [the police] that was based upon you observ[ing] the defendant choking the victim?” Answer: “Correct.” A1437:2-5. (d) Baugher acknowledged on cross-examination that he had previously told the police that he observed “two guys grappling with each other.” A1516:24-1517:21. Once again subjecting Baugher to post-event suggestion, the prosecutor on redirect asked the leading question: “When defense counsel asked you questions about the two men grappling you were referring to the choke hold; is that correct?” Answer: “Correct.” A1537:6-9. -41- The testimony would also have given the jury reason to question the reliability of the eyewitness’s guesstimates at trial of the duration of the incident. The trial record includes witness statements from four prosecution eyewitnesses: Beelen, Muthig, Pacella and Everhart. Not a single one of those contemporaneous statements includes an estimate by the witness of the duration of the incident. A6700-6701, 6715, 6752, 6745-6746.43 L. The prosecutor’s intentionally improper summation. Defense counsel gave her summation on December 2, 2009, more than seven weeks after jury selection began. During her summation, counsel argued that Tony did not act with criminal intent, that he held on to Reister after the two hit the floor because he was frozen in fear. A5342:1-8, 5417:21-24, 5450:17-5451:22. These arguments were entirely proper and were rooted in what the eyewitnesses saw and heard. E.g., A5394:5-19 (defense summation) (“Several witnesses conveyed a similar sentiment that Tony seemed frozen in place, that Tony as he’s being punched and kicked and pushed and pulled . . . he didn’t move, he didn’t react he didn’t respond. Just frozen, ladies and gentlemen. And is that 43 Defense counsel, rightfully, sought to make this point to the jury, asking the lead detective on the case the obvious question: “Was it standard to question each witness about how long the period of time was that the individual may have seen Mr. Reister in a headlock?” A4793:25-4794:3 (Higgins). The trial court sustained the prosecution’s objection. -42- surprising? . . . He had just been pushed off a table and a really big guy was on top of him. He was just out dancing in a bar one second on a table and then boom.”). The prosecution’s summation, by contrast, was grossly improper in a number of respects. The most serious misconduct was the prosecutor’s repeated comment on the fact that Tony had exercised his constitutional right to remain silent, arguing to the jurors that they could not conclude that Tony was panicked or afraid because they had heard no testimony to that effect “from the witness stand.”44 Plainly, because Tony was the only person who could have told the jury “from the witness stand” what he was thinking, this was an improper reference to Tony’s decision not to testify. See pp. 98-103, infra. The prosecution also engaged in misconduct when it repeatedly invoked Reister’s good character, flouting the court’s rulings barring such references. In one instance, the prosecution referred to Reister as a “40 year old married man with children.” A5565:2-4. After the trial court sustained the defense’s objection, the prosecution continued uninterrupted, arguing: “This is a 40 year old man who has a full-time job, a family and part-time job. He’s looking 44 A5528:25-5529:3 (“Neither I nor defense counsel can tell you what he’s thinking. It has to be from the witness stand.”); A5560:16-19 (“There is no evidence that this defendant felt panicked, there is no evidence that this defendant felt fear. Nothing from the witness stand.”); A5617:7-13 (“[Y]ou have to judge the case based upon the evidence, not what Ms. Kedia tells you was in the defendant’s mind, not when she tells you he was panicked and in fear. What came out of the witness stand that’s what you base this case on.”); see also A5529:4-6 (“I don’t recall anyone testifying to him being in fear or panic.”). -43- to brawl?” A5565:8-10. The prosecution also disregarded the court’s instruction that it could not refer to the fact that Reister was an organ donor to establish his good character, referring to the donation as an “act of kindness” that the defense was trying to use against the prosecution. A5533:20-22. The defense’s objection was (again) sustained, but not before the jury heard the argument and the damage was (again) already done. A5533:23-24. M. The tainted jury deliberations. Jury deliberations began in the case on December 2. The jury deliberated for nine days. It sent a total of 19 notes.45 During the course of deliberations, the jury asked for the charge on the elements of each crime charged to be reread four times; the justification charge to be reread twice; and the murder charge to be reread once.46 The length of the deliberations alone establishes that the jury was struggling with the case. The extent of the troubles vexing the jury did not become clear until after the trial, however. The most significant issues related to Juror No. 3, F.O. As detailed in the affidavit F.O. submitted in support of Tony’s motion to set aside the verdict, by Thursday, December 10, the seventh day of 45 A7208, 7216, 7217, 7219, 7221, 7222, 7223, 7224, 7225, 7226, 7227, 7228, 7229, 7235, 7237, 7238, 7240, 7242, 7243. 46 A7208, 7216, 7219, 7221, 7229. -44- deliberations, the jury was deadlocked on the charge of manslaughter in the first degree, with F.O. the sole juror holding out for acquittal because she believed that Tony was justifiably acting in self-defense. That night, F.O. was informed by Alternate Juror No. 2, C.D., that Juror No. 2, T. B., had violated the court’s instructions twice during the course of the day by disclosing the state of the deliberations to C.D., telling C.D. that there was one holdout for acquittal. A57-59 (F.O.); A74-75 (C.D.). The next morning, Friday, December 11, F.O. and C.D. reported T.B.’s violation to the court, which then proceeded to interview F.O., C.D. and T.B. In her interview, T.B. - who, as it turned out, had landed a job with the Suffolk County Police Department in the middle of the trial - first flatly denied that she had disclosed anything to C.D. She then became evasive, admitting to the court only that she had spoken to C.D. in the morning but could not “recall exactly” what she said, while still denying that she had said anything to C.D. at the end of the day. A5944:6-5945:23. The trial court made a finding that it credited the information provided by C.D. - that T.B. had both violated the court’s instruction not to discuss the case and had lied about it when questioned by the court. The court nonetheless refused to discharge, or even reprimand, T.B. for violating the court’s -45- instructions, and refused to give F.O. or C.D. any explanation for his decision. A5959:19-5963:1. Then, over that weekend, F.O.’s son was arrested in Suffolk County for criminal possession of cocaine, a Class D felony, four misdemeanor charges relating to marijuana possession and two misdemeanor charges relating to the possession of drug paraphernalia, including a scale. He faced up to seven years in prison on the cocaine charge alone. A64; A69-71; Penal Law § 70.70.47 Understandably, F.O. was terribly concerned that, because of the incident with T.B., the Suffolk County D.A.’s Office knew that she was the only holdout for acquittal and that the D.A.’s Office would be much harder on her son if she did not vote to convict Tony. A54, 66. F.O.’s family also pressured her about having to go back to deliberate. A65. Faced with all of this, that Monday, shortly after the ninth day of deliberations began, F.O. agreed to vote against her conscientiously held belief that Tony had acted justifiably in self-defense. A67. Distraught over the fact that she had voted to send an innocent young man to prison to save her own son, F.O. 47 The charges against F.O.’s son were quite serious. He was involved in a traffic incident with a law enforcement officer and is alleged to have almost run the officer off the road. When the officer pulled F.O.’s son over, he allegedly found nine bags of cocaine, a bag of marijuana and drug paraphernalia in the son’s car. The incident was then reported in a Long Island newspaper the morning that F.O. returned to court for jury deliberations. “Drug Charges for Driver Who Nearly Collided With Trooper,” Long Island Press, Dec. 14, 2009. -46- reached out to defense counsel the very night the verdict was handed down. A50. She then made the difficult decision to voluntarily submit an affidavit in which she “beg[ged] the Court’s and the defendant’s forgiveness.” A53-54, 68. N. The post-trial motion to set aside the verdict is denied. After the trial, the defense moved to set aside the verdict under CPL 330.30. The motion advanced two grounds: (a) that Tony had been denied his constitutional right to an impartial jury; and (b) that Dr. Wilson’s testimony should have been set aside under Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), and Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006). As noted, F.O. supplied an affidavit in support of the motion. In response to the F.O. affidavit, the Suffolk County D.A.’s Office recused itself from the prosecution of F.O.’s son, a direct admission that the Office had a serious conflict. A391. C.D. voluntarily submitted a second affidavit detailing other instances of juror misconduct. A72- 75. In addition, the defense submitted the affidavits of a blue-ribbon group of medical experts: • Dr. Marcella Fierro - recently retired Chief Medical Examiner for the State of Virginia. Dr. Fierro is the Emerita Professor and Chair of the Department of Legal Medicine, Medical College of Virginia, and has published on a wide range of topics in forensic medicine. She was -47- a member of the Committee that authored the National Academy of Sciences Strengthening Forensic Science in the United States: A Path Forward (2009), a report that was critical of the admission of junk science in criminal cases. A94-100. • Dr. Cyril Wecht - former Chief Medical Examiner for Allegheny County, Pennsylvania. Dr. Wecht holds a number of academic ap- pointments, including as a Clinical Professor of Pathology at the Uni- versity of Pittsburgh Medical School. Dr. Wecht has lectured around the world on forensic medicine and has published extensively in the field. In 2009, he co-authored a book entitled Police-Related Deaths: Analysis and Prevention. A327-333. Dr. Wecht’s credentials were lauded by the United States Court of Appeals for the Second Circuit in Rivas v. Fischer, 687 F.3d 514, 544 (2d Cir. 2012). • Dr. Thomas Andrew - Chief Medical Examiner for the State of New Hampshire and the former Acting Deputy Chief Medical Examiner for Richmond County, New York. Dr. Andrew has published and lec- tured extensively on a wide range of topics in forensic medicine, in- cluding on accidental death resulting from “choking games.” A76-80. • Dr. Charles Wetli - recently retired Chief Medical Examiner for Suf- folk County, New York. As Chief Medical Examiner, Dr. Wetli was -48- responsible for leading the effort to identify the remains of the pas- sengers of TWA Flight 800. From 1996 to 2006, Dr. Wetli was a Clinical Professor of Pathology at SUNY Stony Brook. Dr. Wetli has published extensively in the field of forensic medicine and is the co- author of the article “The Forensic Significance of Conjunctival Pete- chiae,” and a chapter entitled “Sudden Unexpected Death in Custody” in the book Physiology, Pathology and Law. A355-358. • Dr. Joshua Perper - Chief Medical Examiner for Broward County, Florida. Dr. Perper holds a number of academic appointments, in- cluding at the University of Miami. Dr. Perper has published or con- tributed to 11 books and over 100 articles in the field of forensic med- icine, and has written and lectured extensively on sudden cardiac death. A273-276. • Dr. Bruce Decter - Clinical Instructor in Medicine at New York University. Dr. Decter is a cardiologist who practices in all three of the major cardiac centers in Nassau County: North Shore, Long Is- land Jewish and Saint Francis. A87-91. This distinguished group joined Dr. Kassotis and Dr. Spitz in affirming the same thing: Dr. Wilson - who has never published an article or -49- held a faculty appointment - simply had no basis for testifying that Reister’s neck must have been compressed for 2 to 4 minutes. To the contrary, every single expert confirmed that Dr. Wilson’s opinions were flat wrong: that death can result from carotid sinus compression lasting as short as 10 to 15 seconds, that Reister’s preexisting conditions contributed significantly to his tragic death, and that no conclusions about the duration of the incident could be drawn from the pattern of petechiae or the purplish appearance of Reister’s face.48 Their uniform opinions were backed up by authoritative literature in the fields of cardiology, forensic medicine and vascular surgery, including the article “Death Following Carotid Sinus Pressure” published in the Journal of the American Medical Association. A146-50.49 The court denied the CPL 330.30 motion without even holding a hearing. A12-17. 48 A76-80 (Dr. Andrew); A87-91 (Dr. Decter); A94-100 (Dr. Fierro); A162-168 (Dr. Kassotis); A273-276 (Dr. Perper); A303-308 (Dr. Spitz); A327-333 (Dr. Wecht); A355-358 (Dr. Wetli). 49 See also A142-144 (“Ventricular Fibrillation Induced by Carotid Sinus Massage Without Preceding Bradycardia”); A152-153 (“Pause Dependent Ventricular Tachycardia Resultant from Carotid Sinus Massage”); A196-201 (“Carotid Angioplasty and Stent-Induced Bradycardia and Hypotension”); A203-253 (“Guidelines on Management (Diagnosis and Treatment) of Syncope”); A255-263 (“Day-Night Pattern of Sudden Death in Obstructive Sleep Apnea”); A265-272 (“A Case of Vagally Mediated Idiopathic Ventricular Fibrillation”). -50- O. Tony’s 22-year sentence: proof of the bias that infected the trial. The trial-court proceedings culminated with Tony’s sentencing on April 14, 2010. The trial judge, C. Randall Hinrichs, moved the hearing to the largest courtroom in the Suffolk County Criminal Courthouse to accommodate an overflow crowd. The 60 or more uniformed officers in attendance burst into applause when Justice Hinrichs handed down a 22-year sentence, just three years shy of the maximum. A6091-6095; A6096. The sentence provided the final and perhaps the most concrete proof of the bias that infected this case. Tony was sentenced to 22 years, more harshly than someone convicted of murder, a charge of which he was acquitted.50 The trial court had to acknowledge that Tony was not the sort of hardened criminal who would typically receive a maximum or near maximum sentence.51 The only way to 50 Between 2005 and 2009, the average sentence in New York for a first-time violent felony offender convicted of first-degree manslaughter was 15.4 years. During the same period, the average sentence imposed for second-degree murder was 21.9 years to life. These sentencing statistics are maintained by the Division of Criminal Justice Services, are matters of public record not reasonably subject to dispute, and were properly cited to the Second Department. See Affronti v. Crosson, 95 N.Y.2d 713, 720 (2001) (census data was properly subject to judicial notice and could be considered for the first time on appeal). 51 Tony was majoring in business administration and was a member of the school’s golf team, carrying a GPA of 3.139. In May 2008, he was presented with St. Joseph’s Golden Eagle Award, presented to the student-athlete who best demonstrates dedication to his team, hard work, honesty, sportsmanship, and integrity. A497. At sentencing, letters of support were submitted from people of all walks of life, from Alan “Ace” Greenberg, Vice Chairman Emeritus at JPMorgan, to Louis O’Neil, a retired Marine Corps Major. A489-540. As the trial court acknowledged: “[I]t was very clear despite the defendant’s past history that was mentioned by -51- make sense of Tony’s extraordinary sentence - a sentence that the Second De- partment could not and did not sustain - is to recognize that it reflects the highly charged, emotional, and politicized nature of this case. (footnote continued) the People, that the defendant was very well liked and very well respected by many individuals. His teammates on the St. Joseph’s golf team in their letters spoke eloquently about his strengths and his character in the letters that were written to the Court.” A6086. -52- 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. Critical issues in this case turned on questions of time. The duration of the hold and the time necessary to induce a fatal arrhythmia bore on went (a) to whether Tony, who acted in self-defense at the outset of the incident, ever formulated the intent to cause Reister serious physical injury; (b) to whether the entirety of Tony’s use of force was justified; (c) to whether Reister’s death was the result of a crime at all, or, rather, from the initial force that Tony was justified in using to defend himself. The prosecution told the jury to ignore all of the evidence showing that the incident was fleeting and instead to credit the testimony of the prosecution eyewitnesses and of Dr. Wilson - who effectively testified that as a matter of medical science, the prosecution eyewitnesses had to be right and the defense eyewitnesses had to be wrong - that Tony must have held Reister for 2 to 4 minutes. But it was precisely on these issues that the trial court made evidentiary rulings that unjustly stacked the deck against Tony and undermined his defense. The cumulative effect of the trial court’s errors was a whipsawed defense -53- - a defense that, on the one hand, was faced with incompetent medical evidence that never should have gone to the jury, and that, on the other hand, was prevented from fully and fairly presenting to the jury its evidence establishing that this whole incident lasted less than one minute. These rulings are all based on the lower courts’ application of the wrong legal standard and are therefore legal errors subject to de novo review. See, e.g., People v. Borges, 69 N.Y.2d 1031, 1033 (1987) (“where, as here, the lower courts have applied an incorrect legal standard, an issue of law reviewable by this court is presented”; internal citation omitted). There was nothing harmless about these errors. On the contrary, the length and nature of the nine-day jury deliberations - which generated 19 juror notes - alone demonstrate that this was an extremely close case.52 A. The trial court erred when it refused to strike Dr. Wilson’s unsupported assertion that Reister’s neck must have been compressed for 2 to 4 minutes. Dr. Wilson’s testimony that Reister’s death and the physical condition of his body could only be explained by 2 to 4 minutes of neck compression and that Reister’s pre-existing medical conditions played no role in his death was 52 People v. Crimmins, 36 N.Y.2d 230, 241 (1975) (harmless error analysis does not apply where proof of guilt was not overwhelming); People v. Tarantola, 178 A.D.2d 768, 770 (3d Dep’t 1991) (“[T]he jury deliberated for 17 1/2 hours before returning a verdict. It can hardly be said, therefore, that the result would have been the same absent the errors.”); United States v. Quiroz, 13 F.3d 505, 513-14 (2d Cir. 1993) (fact that jury was deadlocked after three days of deliberations indicated errors were not harmless). -54- utterly and completely without any foundation in medical science and was therefore inadmissible.53 1. The Frye and Parker doctrines require the exclusion of expert opinions that are not based on generally accepted scientific principles and are unreliable. The standard for the admission of expert testimony is governed in New York by the Frye test. “The long-recognized rule of Frye . . . is that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has ‘gained general acceptance’ in its specified field.” People v. Wesley, 83 N.Y.2d 417, 422 (1994) (emphases added). “‘[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’” Id. at 422-23 (emphasis in original). Moreover, regardless of whether Frye is satisfied, under Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006), a court faced with a challenge to the 53 Where the trial court applies the wrong legal standard in determining the admissibility of expert testimony, it commits an error of law subject to this Court’s review. See, e.g., People v. Cronin, 60 N.Y.2d 430, 433 (1983) (“This was not a proper application of the test for expert testimony, and presents a legal issue for review by us.”). -55- admissibility of expert testimony must separately determine “whether there is an appropriate foundation for the experts’ opinions.” The Second Department addressed only two of the three aspects of Dr. Wilson’s testimony about the duration of the hold: petechiae and purplish face. In ruling that these two aspects of Dr. Wilson’s testimony were properly admitted, the Second Department stated that Frye “is only implicated where a question as to whether the expert’s methodologies or deductions are based upon principles that are sufficiently established to have gained general acceptance as reliable.” The court then went on to rule, however, that Frye was “inapplicable” to test the admissibility of Dr. Wilson’s opinions because the Deputy “made conclusions based on his personal observations and experiences as a forensic pathologist for many years” and that, as a result, “the defendant’s factual disagreement with the expert’s theory” did not implicate Frye. CA3. The ruling reflects a fundamental misunderstanding of Frye and Parker.54 The Second Department recited the right words: Frye is concerned not 54 It also stands in conflict with the First Department decision in Marso v. Novak, 42 A.D.3d 377, 378 (1st Dep’t 2007), and other First Department cases following that decision. In Marso, a medical malpractice plaintiff argued that because a credentialed expert used differential diagnosis, a generally accepted methodology, in reaching his conclusion that the plaintiff suffered a stroke because her physician failed to give her a pacemaker, the trial court erred in granting the defendants’ motion for judgment notwithstanding the verdict on the ground that the plaintiff failed to present a prima facie case. In rejecting this claim, the First Department recognized that Frye scrutiny is generally applied to scientific principles and methodologies, rather than the conclusions derived therefrom, but added this caveat: “‘but not when there is a -56- only with whether the expert’s methodology is generally accepted. Frye is also concerned with whether the principles that underlie the expert’s opinion are generally accepted as well.55 So, for example, the proponent of DNA evidence must establish both that the methodology used to sequence the genes in the sample and that the genetic science underlying the DNA test itself are generally accepted in the scientific community. Similarly, a medical examiner must establish that the methods he or she used in conducting an autopsy are generally accepted in the field, and that the medical principles he or she applied in interpreting his or her observations are generally accepted as well. (footnote continued) generally or widely held view in the scientific community rejecting [the proffered expert’s] conclusions outright.’” Id. Concluding that the condition that the pacemaker would have treated (bradycardia) is not an accepted risk factor for stroke, the First Department held: “To accept plaintiff’s ‘methodology-only, ignore-the-conclusion’ approach would circumvent the rationale for the Frye doctrine.” Id. The Marso line of cases thus recognizes, correctly, that the Frye test prohibits the introduction of expert evidence that relies on a medical principle - in Marso, the “principle” that bradycardia is capable of causing a stroke - that is not generally accepted in the medical community. The Fourth Department made a similar ruling in Muhammad v. Fitzpatrick, 91 A.D.3d 1353, 1354 (4th Dep’t 2012) (“We agree with plaintiff that defendants’ theory [of causation] . . . was a novel theory subject to a Frye analysis, and that defendants failed to rebut plaintiff’s showing that their theory was not generally accepted within the relevant medical community.”). See also Rosati v. Brigham Park Co-op. Apartments, 36 Misc. 3d 1214(A), at *7 (Kings Co. 2012) (noting the “significant” “differences between the First and Second Departments” on whether Frye applies only to the validity of the experts’ theories or also the experts’ conclusions). 55 See, e.g., People v. Wernick, 89 N.Y.2d 111, 117-18 (1996) (finding expert testimony on novel theory of “neonaticide” properly excluded under Frye); see also People v. Taylor, 75 N.Y.2d 277, 286-87 (1990) (rape trauma syndrome analyzed under Frye); Matter of Nicole V., 71 N.Y.2d 112, 120 (1987) (sexually abused child syndrome analyzed under Frye); People v. Henson, 33 N.Y.2d 63, 73-74 (1973) (battered child syndrome analyzed under Frye). -57- But Dr. Wilson’s “2 to 4 minute” opinion was not based on deductions from generally accepted medical principles. On this critical point, Dr. Wilson did not “deduce” anything. Dr. Wilson just asserted that medical principles establish that a fatal arrhythmia can only be induced by 2 to 3 minutes of neck compression and that if force is applied for a shorter of time, the heart will necessarily restart itself. Dr. Wilson just asserted that medical principles establish that petechiae on and around the eyelids can only form where there is 2 to 4 minutes of neck compression. And he just asserted that medical principles establish that purplish facial skin can only be explained by 2 to 4 minutes of compression. See pp. 33-39, supra. Medical science has established that all of these asserted principles are not only novel, they are generally accepted to be wrong. Medical science establishes that the presence of a purple face indicates nothing more than the presence of deoxygenated blood, that petechiae can form in a matter of seconds and that neither factor can be relied upon to establish the length of time that an individual’s neck must have been compressed. Medical science establishes that death can result from no more than 10 to 15 seconds of neck compression, and that the heart, once thrown into arrhythmia, will not necessarily correct itself. Medical science also establishes that pre-existing conditions - a history of irregular heartbeats, sleep apnea, hypertension, excessive weight, an enlarged heart, a -58- history of fainting - all increase the likelihood of this happening. See pp. 34-35, 46-49, supra. Thus, just as accident reconstruction experts agree that a car moving at 60 mph travels at 88 feet per second, just as physicists agree that when an apple falls from a tree, the force of gravity pulls it down, not up, in accordance with the principles of Newton’s laws, the medical community agrees on the speed with which a fatal arrhythmia can be induced, petechiae can form, and blood can become deoxygenated. And as Dr. Spitz and Dr. Kassotis testified, these accepted medical principles all establish that Reister’s death and physical condition could have been triggered by no more than 10 to 15 seconds of neck compression. 2. Dr. Wilson’s opinions flunked the Frye and Parker tests. In light of all this, there is simply no basis for this Court to sustain the admission of Dr. Wilson’s opinions. Even though the prosecution had the burden of establishing that Dr. Wilson’s opinions were admissible, and even after defense counsel alerted the trial court and opposing counsel that she was challenging the admissibility of Dr. Wilson’s “2 to 4 minute” opinion, Dr. Wilson did not attempt to show that his opinions were derived from the application of generally accepted medical principles. The prosecution never sought to elicit a word from Dr. Wilson in which he even attempted to base his opinions on generally accepted medical -59- principles or cite any medical literature substantiating his opinions.56 And when confronted with post-trial affidavits from six present and former Chief Medical Examiners and two pre-eminent cardiologists who all said that Dr. Wilson’s novel opinions were not accepted in the medical community, the prosecution offered no factual rebuttal. The reason for this total failure of proof is obvious: there was nothing for the prosecution to point to. The only literature that Dr. Wilson cited establishes that accidental death can result from just a few seconds of carotid sinus compression. See pp. 36- 37, supra. Dr. Wilson’s “2 to 4 minutes” opinion based on the pattern of petechiae and the “purplish” appearance of Reister’s face were equally unsupported and unreliable.57 Dr. Wilson likewise had no basis in medical science for testifying that Reister’s pre-existing conditions did not predispose him to sudden death from carotid sinus compression. He disclaimed any expertise in the relevant specialty, 56 The prosecution did call a second physician, Dr. Blanco, Reister’s treating cardiologist who first saw Reister when he was hospitalized with chest pains in 2005. A4086:7,4090:8- 4094:10. But Dr. Blanco was not asked to and did not testify that any aspect of Dr. Wilson’s “2 to 4 minute” opinion was correct. To the contrary, Dr. Blanco acknowledged that a fatal arrhythmia can be induced in as little as 10 seconds. A4440:7-4444:21. 57 Ironically, Dr. Wilson testified that he never even thought to focus on the presence or absence of petechiae in individuals suffering from sudden cardiac death until “a few years ago” when he was alerted to the issue by his former boss, Suffolk County Chief Medical Examiner Dr. Charles Wetli. A3901:12-3902:16. Dr. Wetli - the co-author of a study that reviewed the presence of petechiae in 5,000 autopsy subjects - makes clear in his affidavit, however, that his former subordinate simply did not know what he was talking about, on this or any of the other opinions he offered about the duration of the incident. A355-358; A3930:19-3933:20 (Dr. Wilson). -60- cardiology. The literature that Dr. Wilson brought to the stand with him said he was wrong. See pp.36-37, supra. The facts here thus bear a striking similarity to the facts in Rivas v. Fisher, 687 F.3d 514, 544 (2d Cir. 2012). In that case, as here, the defense submitted an expert affidavit from Dr. Cyril Wecht, one of the nation’s preeminent forensic scientists. In that case, as here, Dr. Wecht’s affidavit unequivocally and authoritatively established that the medical examiner’s opinion was wrong. And in that case, as here, the prosecution did not challenge the credentials of Dr. Wecht or attempt to offer a response to his opinions. Id. (“[W]e do take note of the remarkable - and perhaps telling - absence of any serious challenge to his credibility or expertise by the State . . . . Therefore, as a reviewing court, we have before us only Wecht’s essentially unchallenged testimony.”). Indeed, the only notable difference between Rivas and this case is that, in this case, Dr. Wecht’s opinions on the critical issues were joined in by seven additional experts with similarly stellar credentials. Thus, this was not a case where the defense simply disagreed with the medical examiner’s deductions from generally acceptable medical principles. The defense’s objection went to the very medical principles upon which Dr. Wilson -61- explicitly relied - principles that are not only novel but contrary to generally accepted principles of forensics and cardiology.58 3. The Court should make clear that there is no medical examiner exception to the requirements of the Frye and Parker doctrines. Because of the “danger” that the jury will be swayed by “unreliable or speculative information (or ‘junk science’) . . . with the weight of an impressively credentialed expert behind it,” the courts must exercise a gatekeeper function. Parker, 7 N.Y.3d at 447.59 The lower court rulings here thus strike at the heart of the concern that lies behind Frye, Parker and, for that matter, the federal Daubert standard, a concern that should be heightened in a criminal case, where an individual’s liberty is at stake. In the years since Wesley and Parker were decided, the Appellate Division decisions evidence that lower courts have taken their gatekeeper function 58 The admission of Dr. Wilson’s testimony was so fundamentally unfair that it deprived Tony of his right to due process under the federal and New York constitutions. See Payne v. Tennessee, 501 U.S. 808, 825 (1991) (“In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”); Rousan v. Roper, 436 F.3d 951, 958- 59 (8th Cir. 2006) (improper admission of evidence violates due process clause where it renders trial “fundamentally unfair”); Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998). 59 See also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 148 (1997) (Breyer, J., concurring) (“when law and science intersect,” the court’s duty to act as gatekeeper “often must be exercised with special care”); Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996) (Posner, J.) (a trial court that is “asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist”). -62- seriously in civil cases.60 But, as this case demonstrates, the same cannot be said in criminal cases.61 That is a major conclusion of a 2009 landmark study by the National Academy of Sciences in its report Strengthening Forensic Science in the United States: A Path Forward (2009). The report - which was authored jointly by a panel of distinguished scientists and lawyers - found the contrast between how courts approach the admission of forensic testimony in criminal and civil cases to be stark. In criminal cases, “trial judges rarely exclude or restrict expert testimony offered by prosecutors,” and equally as troubling “appellate courts routinely deny appeals contesting trial court decisions admitting forensic evidence against criminal defendants.” Report at 11. But “[t]he situation appears to be very different in civil cases,” where “ironically” “appellate courts appear to be more willing to second-guess trial court 60 See, e.g., Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63 (2d Dep’t 2011) (extensive decision evaluating the admissibility of medical evidence on toxicity of Tylenol); In the Matter of Bausch & Lomb Contact Lens Solution Prod. Liab. Litig., 906 N.Y.S.2d 778 (N.Y. Co. 2009), (extensive decision evaluating the admissibility of medical evidence on toxicity of contact lens solution), aff’d, 87 A.D.3d 913 (1st Dep’t 2011); Lara v. N.Y. City Health & Hosps. Corp., 305 A.D.2d 106 (1st Dep’t 2003) (upholding trial court’s decision to set aside a jury verdict where the plaintiff’s expert’s medical causation theory was not supported by any reported medical cases or formal studies); Pauling v. Orentreich Med. Grp., 14 A.D.3d 357 (1st Dep’t 2005) (plaintiff failed to meet its burden of proof where no medical literature was submitted to support theory and no scientific or medical board recognized causal relationship); Selig v. Pfizer, Inc., 290 A.D.2d 319 (1st Dep’t 2002), aff’g, 185 Misc. 2d 600 (N.Y. Co. 2000). 61 See People v. Robinson, 61 A.D.3d 784 (2d Dep’t 2009) (summary order rejecting Frye challenge to medical examiner testimony); People v. South, 47 A.D.3d 734 (2d Dep’t 2008) (same). -63- judgments on the admissibility of purported scientific evidence.” Id. The report concludes, “[t]he bottom line is simple: In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem.” Report at 53. There is no basis for this Court to endorse a watered-down version of Frye and Parker for criminal cases or endorse the Second Department’s ruling, which amounts to a medical examiner exception to these basic evidentiary rules. In the typical case, the medical examiner will testify based on what he or she saw in the autopsy room and will apply principles that are generally accepted in the field. But when a challenge to the admission of a medical examiner’s opinion does arise, the courts should have no hesitancy to take the time and make the effort to determine whether the examiner’s opinion is rooted in accepted medical principles. As two leading researchers on the subject have documented, the consequence of the courts not doing so is that innocent people - people like Tony Oddone - have been sent to prison.62 62 Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 4 (2009) (“The problem was not with the methods used in the laboratory but with the testimony in the courtroom.”); (prosecution experts presented “invalid” scientific testimony - i.e., conclusions that are simply wrong as a matter of medical science - in 60% of the cases examined). -64- 4. Without Dr. Wilson’s testimony, the evidence was legally insufficient to support the conviction; the proper remedy is dismissal of the indictment, not remand for a new trial. The prosecution essentially admitted in the Appellate Division that when this incident began, Tony was trying to protect himself from a man who had attacked him in a crowded bar at 1:00 in the morning; a man 70 pounds heavier and four inches taller. According to the prosecution, “it was defendant’s conduct after Reister fell to the ground that” turned his act of self-defense into a crime. Pros. App. Div. Br. 40. Thus, because Tony was undoubtedly acting in self-defense at the outset of the incident, the prosecution was required to establish beyond a reasonable doubt that, even assuming Tony’s use of force in self-defense at some point became excessive, Reister’s death was caused solely by the excessive force, and not by the initially justified use of force. See 6 Eve Cary & Hon. Martin, New York Practice Series, New York Criminal Law § 2:13 (2012) (“If a defendant is justified in using physical force, but uses more than necessary, the People have the burden of proving that the excessive force caused the injury or death with which the defendant is charged”) (collecting cases). Without Dr. Wilson’s testimony, there was no evidence establishing that Reister died from the application of unjustified force. No rational jury, possessed only of accurate scientific information, could conclude beyond a -65- reasonable doubt that Reister’s death was caused solely by the force that Tony used after he reasonably should have realized that Reister no longer presented a danger to him. If Reister’s heart went into a fatal arrhythmia within seconds after the application of pressure on his carotid sinus nerves, then none of the force applied by Tony after that point could have caused Reister any harm, no matter how long the headlock was held. And if it was reasonably possible that a fatal arrhythmia was initiated at the outset, when Tony unquestionably was justified in defending himself, there was necessarily a reasonable doubt that Tony applied excessive force, and therefore no basis for the jury to conclude that Tony was guilty. And that is exactly the case here. All of the admissible evidence confirmed (1) that a fatal arrhythmia could result from just seconds of pressure and (2) that Reister’s preconditions made this tragic result more likely. Excluding Dr. Wilson’s erroneous opinions, there was simply no rational basis for the jury to conclude that this is not precisely what happened here. Thus, but for the erroneous admission of Dr. Wilson’s testimony, dismissal of the indictment would have been required.63 63 The Second Department’s failure to even discuss this issue when it evaluated whether the conviction was supported by the weight of the evidence provides an additional ground for reversal, especially in light of the fact that Dr. Wilson’s fallacious testimony was so shot full of holes by the testimony from the defense experts. See People v. Bleakley, 69 N.Y.2d 490, 495-96 (1987) (“Here the Appellate Division, on a plain reading of the majority and dissenting opinions, failed to provide its exclusive review authority which is expressly withheld from the trial court and even from this court. We must, therefore, remit for that court to complete its consideration -66- While, ordinarily, the remedy for prejudicial trial error is remand for a new trial, as recognized in the leading treatise on this Court’s jurisdiction, a different rule prevails where, but for the erroneous admission of evidence, the record would have been insufficient to sustain the conviction as a matter of law. In those cases, this Court’s practice is to order dismissal of the indictment. See Arthur Karger, The Powers of the New York Court of Appeals § 21:15 (3d Rev. 2005) (where “the evidence which remained [following suppression of wrongfully admitted evidence] was insufficient to support a finding of guilty, the court would dismiss the indictment or information.”); compare id. at 797 n.5 (by contrast, “where the evidence remaining after excising the suppressed evidence would be sufficient to support a verdict of guilty, the appropriate disposition upon reversal would be an order for a new trial.”). So, for example, in People v. McNatt, 65 N.Y.2d 1046 (1985), the defendant was searched and found to possess stolen property. The trial court denied his motion to suppress based on an illegal search and seizure, and he was convicted. On appeal, this Court reversed, finding that the evidence against the defendant was illegally obtained and should not have been admitted as evidence. Id. at 1048. Although the wrongful admission of evidence constitutes “trial error” (footnote continued) of the case, including application of its weight of evidence review.”). Moreover, the conviction of Tony on the basis of legally insufficient evidence violated his constitutional right to due process. See Langston v. Smith, 630 F.3d 310 (2d Cir. 2011). -67- for which the appellate remedy is generally remand for further proceedings, this Court did not remand, but dismissed the indictment. Id. Dismissal was also ordered in People v. May, 81 N.Y.2d 725 (1992), and People v. Spencer, 84 N.Y.2d 749 (1995), on these same grounds. At the core of the result in these cases is the recognition that where no other evidence has been presented upon which the conviction could be sustained, remand for a new trial is not an option. The Court’s practice is thus consistent with the “settled” rule that “dismissal of a count due to insufficient evidence is tantamount to an acquittal for purposes of double jeopardy and protects a defendant against additional prosecution for such count.” People v. Biggs, 1 N.Y.3d 225, 229 (2003) (citing Burks v. United States, 437 U.S. 1, 18 (1978)). When the prosecution had a chance to present legally sufficient evidence in pursuit of a conviction but failed, it is not entitled to a second bite at the apple on remand.64 64 Although the United States Supreme Court has held that retrial is not barred under the U.S. Constitution where the record before the trial court, including erroneously admitted evidence, is sufficient to sustain the conviction, see Lockhart v. Nelson, 488 U.S. 33, 42 (1988), this Court has never adopted that view as a matter of New York law. It should not do so now. Lockhart, which has never been cited by this Court, has been criticized as analytically unsound and rejected as a matter of state law by at least two state supreme courts. See State v. Maldonado, 121 P.3d 901, 910 n.13 (Haw. 2005); Rushing v. Commonwealth, 726 S.E.2d 333, 338-39 (Va. 2012). Indeed, if it ever should come to pass, we would argue that Lockhart was wrongly decided and that Tony cannot be subjected to a second trial as a matter of federal law. But in any event, the Court should make clear that its practice of dismissing an indictment following reversal of a conviction where, but for the erroneous admission of evidence, the record -68- Thus, since Dr. Wilson’s testimony provided the only evidence on which the jury could base a guilty verdict, consistent with its past practice and double jeopardy protections, this Court should reverse, vacate the conviction, and dismiss the indictment.65 B. The trial court erroneously refused to permit Dr. Penrod to testify that eyewitnesses routinely overestimate the duration of stressful events lasting a few minutes or less. To prove that the incident was fleeting, the defense sought to call Dr. Steven Penrod, a Distinguished Professor of Psychology at John Jay College of Criminal Justice. Dr. Penrod’s testimony has been cited by courts across the nation, and, indeed, this Court recently found reversible error in the exclusion of his expert testimony on eyewitness identification in People v. Santiago, 17 N.Y.3d (footnote continued) would have been insufficient to sustain the conviction, is mandated by the New York constitution’s double jeopardy clause. See People v. P.J. Video, Inc., 68 N.Y.2d 296, 301-03 (1986) (discussing New York’s historical willingness to provide greater constitutional protections to the accused). 65 The legal question of whether double jeopardy precludes retrial is not one that needs to be preserved, as double jeopardy violations are among the well-established “mode of proceedings” errors exempt from the preservation requirement. See, e.g., People v. Michael, 48 N.Y.2d 1, 7-8 (1979); People v. Williams, 14 N.Y.3d 198, 221 (2010) (“Because Rodriguez’s double jeopardy claim implicates a fundamental mode of proceedings, it is reviewable absent preservation.”). Nevertheless, should the Court find it appropriate to do so, the Court should vacate the Second Department’s decision and remit the case to that court so that it can conduct its sufficiency and weight of the evidence review on the basis of only the properly admitted evidence. See CPLR 5613. -69- 661, 673-74 (2011).66 Dr. Penrod would have testified: (a) that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less; and (b) that memory is malleable and that suggestive questioning of witnesses, media reports, hindsight bias, and exposure of one witness to the testimony of others, among other things, can cause eyewitnesses to believe that they witnessed events that they learned of only after the fact. A7134-7135. The trial court summarily ruled on the record that Dr. Penrod could not testify, giving its reasons only after the trial. A4849:10-4850:12, 5095:2-13; A8-10.67 The trial court’s reasoning was wrong. There is no per se rule limiting testimony from forensic psychologists to issues of eyewitness identification. And 66 Dr. Penrod has been qualified as an expert witness in cases throughout the country, with more than 30 publications about the reliability of eyewitness testimony. A7132-7133; A7190- 7205. His work has been cited by the highest court of several states, including this Court. See, e.g., People v. Santiago, 17 N.Y.3d 661 (2011); State v. Lawson, 291 P.3d 673, 703 (Or. 2012) (citing Dr. Penrod’s study as support for the concept that “[w]itnesses are better at remembering and identifying individuals with distinctive features than they are those possessing average features”); State v. Henderson, 27 A.3d 872, 886-88 (N.J. 2011) (citing Dr. Penrod’s studies as establishing the fallibility of witness identifications); State v. Clopten, 223 P.3d 1103, 1106 (Utah 2009) (citing Dr. Penrod’s studies as part of “wealth of empirical research that . . . has solidly established the importance of expert testimony to explain factors contributing to eyewitness fallibility”); Benn v. United States, 978 A.2d 1257, 1266-67 n.26 (D.C. 2009) (citing Dr. Penrod in support of the principle that, contrary to most jurors understanding, studies show memory does not “function[] like a camera” and is instead “influenced by a variety of factors such as stress”); State v. Copeland, 226 S.W.3d 287, 298-304 (Tenn. 2007) (citing Dr. Penrod’s studies in overruling precedent barring expert testimony on eyewitness identification); State v. Romero, 922 A.2d 693, 701-03 (N.J. 2007) (citing Dr. Penrod’s studies in connection with revising the model jury charge for out-of-court witness identifications). 67 Although this issue was pressed vigorously on appeal, the Second Department neglected to address it in its decision below. -70- the trial court did not even consider whether the core aspects of Dr. Penrod’s proffered testimony are within the ken of the ordinary juror.68 1. Nothing in the law limits expert psychologist testimony to the issue of eyewitness identification. The principal ground offered by the trial court for excluding Dr. Penrod’s testimony was that People v. LeGrand, 8 N.Y.3d 449 (2007), and its progeny hold that expert testimony on the subject of the reliability of eyewitness testimony is permitted only where there is an issue of personal identification. But there is nothing in LeGrand or the cases following it that so holds.69 To the contrary, LeGrand noted that the trend is toward “more liberally” admitting expert psychological testimony.70 And in reaching its ruling, 68 Because the trial court did not apply the proper legal test and failed to exercise the discretion available to it, its rulings constitute errors of law and are subject to de novo review. See People v. Lee, 96 N.Y.2d 157, 162-63 (2001) (“we note that in summarily rejecting defendant’s motion on the ground that such testimony was per se inadmissible, the hearing court failed to exercise its discretion”); see also People v. Cronin, 60 N.Y.2d 430, 433 (1983). 69 The trial court did not reject Dr. Penrod’s opinions on Frye grounds and, in fact, declined to hold a Frye hearing. A4849:21-4850:12. In any event, a review of the authoritative literature makes clear that Dr. Penrod’s proffered opinions regarding the effects of stress on human perception, and particularly on eyewitness perceptions of the duration of short incidents, are well-established in the field of psychology. See, e.g., Jules Epstein, The Great Engine that Couldn’t: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727 (2006) (“Studies confirm that eyewitnesses overestimate an event’s duration, particularly when stress is elevated”) (citing Thomas J. Feeney, Expert Psychological Testimony on Credibility Issues, 115 Mil. L. Rev. 121 (1987) (emphasizing observer overestimation of an event’s duration and reporting one study where the overestimation was by a factor of three)) (other citations omitted); Elizabeth F. Loftus et al., Time Went by So Slowly: Overestimation of Event Duration by Males and Females, 1 Applied Cognitive Psychol. 3 (1987). 70 LeGrand, 8 N.Y.3d at 459 (citing Lee, 96 N.Y.2d at 162 and People v. Young, 7 N.Y.3d 40 (2006)). -71- LeGrand cited and relied upon the basic principles governing the admissibility of expert testimony discussed in People v. Cronin, 60 N.Y.2d 430 (1983), in which the Court ruled that a psychologist should have been permitted to testify as to whether the defendant was capable of forming criminal intent. Nothing in law or logic suggests that psychologists should be permitted to testify about one aspect of the fallibility of human perception - identification of a person - yet be subjected to a per se rule prohibiting them from testifying about the fallibility of their ability to identify any other aspect of an event. “Expert testimony is properly admitted if it helps to ‘clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror.’” People v. Diaz, 20 N.Y.3d 569, 575 (2013) (quoting De Long v. Erie County, 60 N.Y.2d 296, 307 (1983)); see also People v. Rivers, 18 N.Y.3d 222, 228 (2011) (New York “has a well-established body of case law concerning the admissibility and limits of expert testimony”). LeGrand applied this general rule to the specific testimony at hand and concluded not only that the standard had been met, but that the trial court abused its discretion in precluding the psychologist’s testimony because of the “importance of the evidence to the defense” and its “relevan[ce] to the issues and facts of this case.” 8 N.Y.3d at 457. -72- The same is all true here. Dr. Penrod’s opinions satisfied Frye. And there can be no doubt that Dr. Penrod’s testimony was important to the defense and relevant to the issues here. It would have given the jury a basis in undisputed, universally accepted psychological principles for understanding why they should look to the objective evidence on the duration of the incident and reject the time “guesstimates” provided by the prosecution’s witnesses.71 Dr. Penrod’s testimony also would have assisted the jury in evaluating the testimony of eyewitnesses who used words like “struggle,” “embrace,” and “headlock” in their pretrial statements and then - after meeting repeatedly with the prosecution and being exposed to the press and chatter in the Southampton community - adopted the prosecutor’s language and used the word “choke” at trial. See p. 40 n.42, supra. 2. Dr. Penrod’s opinions involved matters that were central to the issue of guilt or innocence and beyond the ken of the average juror. The second basis offered by the trial court in its written decision relied on a mischaracterization of Dr. Penrod’s testimony and was also erroneous. The court ruled, after the fact, that the jury did not need an “expert witness . . . to explain that memory and perception are affected by lighting, alcohol ingestion, 71 DJ Paul Fallo’s testimony illustrates this universally accepted psychological principle in action. Before Fallo gave his testimony about the length of the incident measured against the time clock on the CD player, he guesstimated that there was a 4-minute window when he was out of the room. A2893:25-2898:1. But when Fallo was put on the equivalent of a stopwatch, it was conclusively shown that his subjective impression of the duration of the incident was wrong and that Fallo had overestimated the duration of the incident by approximately 45%. -73- noise, stress and panic,” because those matters are “well within the ordinary experience and knowledge of the average juror.” A9. But as the written proffer from Dr. Penrod confirms, that was not the focus of his testimony at all. Rather, Dr. Penrod’s testimony was focused on two very specific psychological phenomena: the perception of time and the power of post-event suggestion. A7134-7145. This testimony, which the trial court’s opinion simply did not address, is not within the ken of the ordinary juror. As this Court held in People v. Young, 7 N.Y.3d 40, 45 (2006), “a court’s exercise of discretion in a case like this depends in large part on whether the ‘specialized knowledge’ of the expert can give jurors more perspective than they get from ‘their day-to-day experience, their common observations and their knowledge.’” (Citations omitted.) The Young Court continued: “In other words, could the expert tell the jury something significant that jurors would not ordinarily be expected to know already?” In applying that test, the Court rejected the notion that because the average juror may have a general understanding that stress can affect the reliability of eyewitness identification, the jury “would not benefit” from hearing expert testimony on that subject. Id. Thus, the ordinary juror may have some general understanding that mistakes can be made in cross-racial identification. But the ordinary juror does not understand that scientific studies have established that errors of this type are -74- systematic. Hence, as the Court recognized in Santiago, evidence of the fallibility of cross-racial identifications is beyond the ken of the ordinary juror and admissible. 17 N.Y.3d at 672. Likewise, jurors may have some general understanding that “postevent information” can be incorporated into a witness’s actual recollection of the event. Notwithstanding this, in LeGrand, the Court held that it was an abuse of discretion to exclude expert testimony on that subject. 8 N.Y.3d at 458.72 Likewise, while there may be some general understanding that an eyewitness’s perception of time may be affected during a stressful event, it simply cannot be said that the average juror understands that eyewitnesses systematically and predictably overestimate the duration of relatively short stressful events. In fact, studies have confirmed that potential jurors believe either that eyewitnesses accurately estimate the duration of short events (when in fact, they do not), or that eyewitnesses under-estimate the length of such events - precisely the opposite of what the generally accepted scientific research shows.73 Thus, the counterintuitive 72 See also People v. Lee, 96 N.Y.2d 157, 162 (2001) (although “jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror”). 73 See Richard S. Schmechel, et al., Beyond the Ken? Testing Jurors’ Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics J. 177 (2006) (“Only 37% of the total respondents correctly understood events unfold faster than witnesses think they do.”); John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of -75- testimony that Dr. Penrod was prepared to offer on this point would have been significant to jurors.74 3. Decisions from other jurisdictions recognize that testimony of the sort excluded here is beyond the ken of the ordinary juror. Decisions from other states’ highest courts confirm that Dr. Penrod’s proffered testimony on Vierordt’s Law is beyond the ken of the ordinary juror. In a thoughtful and thorough opinion, the Supreme Court of Oregon reasoned that because the factors affecting witness perception “are either unknown to the average juror or contrary to common assumptions, expert testimony is one method by which the parties can educate the trier of fact concerning variables that can affect the reliability of eyewitness identification.” State v. Lawson, 291 P.3d 673, 696 (Or. 2012). The Lawson court went on to identify a number of potential variables ripe for such testimony, including witnesses’ tendency to overestimate the length of incidents lasting less than twenty minutes. Id. at 702 (“Studies also show that witnesses consistently and significantly overestimate short durations of time (footnote continued) Eyewitness Identifications, 7 Law & Hum. Behav. 19 (1983) (“Approximately two-thirds of the citizen jurors were unaware that eyewitnesses tend to overestimate the length of time involved in a witnessed crime.”). 74 See People v. Abney, 13 N.Y.3d 251, 268 (2009) (abuse of discretion to refuse to admit expert testimony explaining phenomena that were “counterintuitive, which places them beyond the ken of the average juror.”); People v. Spicola, 16 N.Y.3d 441, 465 (2011) (expert testimony properly admitted where expert theory “describes a range of behaviors . . . some of which seem counterintuitive to a layperson.”). -76- (generally, durations of 20 minutes or less), especially during highly stimulating, stressful, or unfamiliar events.”) (internal citations omitted). The District of Columbia Court of Appeals reached a similar conclusion, observing that psychological studies establishing that “in the case of a violent crime . . . witnesses most often think that the incident lasted longer than it did” were not generally understood by the average juror. Benn v. United States, 978 A.2d 1257, 1268 (D.C. 2009). See also State v. Henderson, 27 A.3d 872, 905 (N.J. 2011) (“studies have shown . . . ‘that witnesses consistently tend to overestimate short durations, particularly where much was going on or the event was particularly stressful’”); United States v. Graves, 465 F. Supp. 2d 450, 457 (E.D. Pa. 2006) (admitting expert testimony that reliability of eyewitness identification is influenced by length of time witness had to view the subject and that “‘especially in stressful events or complex events, people tend to overestimate lengths of times’”). * * * In short, the trial court’s observation that the average juror has some general understanding that perception can be “affected by lighting, alcohol ingestion, noise, stress and panic,” did not accurately describe the legal standard applicable to evaluating the admissibility of Dr. Penrod’s testimony or the testimony that Dr. Penrod would have given. The test was whether the jury would -77- have learned “something significant that [they] would not ordinarily be expected to know,” something that they could learn from an expert with “‘specialized knowledge.’” Young, 7 N.Y.3d at 45. Under that test, Dr. Penrod’s testimony should have been admitted.75 C. The trial court violated Tony’s right to present a defense when it refused to permit counsel to use Flynn’s insurance interview to refresh her recollection. The third evidentiary ruling that unfairly and unlawfully hamstrung Tony’s defense was the trial court’s refusal to permit defense counsel to use Publick House waitress Megan Flynn’s recorded interview to refresh her recollection.76 75 Moreover, the failure to permit Dr. Penrod’s testimony violated Tony’s constitutional right to call witnesses in his own defense. See U.S. Const. amends. VI, XIV; Washington v. Texas, 388 U.S. 14, 23 (1967) (state law that “arbitrarily denied [the defendant] the right to put on the stand a witness . . . whose testimony would have been relevant and material to the defense” violated the defendant’s Sixth Amendment right “to have compulsory process for obtaining witnesses in his favor” because the “Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use”); Ramchair v. Conway, 601 F.3d 66, 73-74 (2d Cir. 2010) (defendant who is “denied the opportunity to present a crucial witness in his own defense in connection with the central issue in his case” is “deprived of his right to a fair trial”); see also Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. This right is abridged by evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve.” (internal quotation marks, citations, and alteration omitted)). 76 The Second Department did not address this issue in its ruling. Nevertheless, because there was no support in the record for County Court’s finding that Flynn did not need her -78- 1. The defense was entitled to use Flynn’s prior recorded statement to refresh her recollection. a. Flynn’s equivocal testimony on its face provided a basis for the defense to use the prior statement to refresh her recollection. The notion that Flynn’s response - “[I]t could have been a minute or so. I don’t know.” - did not indicate Flynn’s need to have her memory refreshed defies logic. The testimony was obviously equivocal. The prosecutor herself recognized that Flynn’s testimony indicated that “she doesn’t have a good memory of it” when, scrambling for something to say, she argued against even having Flynn read the statement to herself. A3818:17. The prosecution effectively admitted again that Flynn needed to have her recollection refreshed when, in her summation, she criticized the defense for even calling Flynn: “I am not putting people on the stand who are not certain about what they saw. She told you she wasn’t certain about what she saw.” A5613:2-5. It has long been established that a witness who suffers a lapse of memory may have her recollection refreshed. See, e.g., O’Hagan v. Dillon, 76 N.Y. 170, 173 (1879); Prince, Richardson on Evidence § 6-214 (Richard T. Farrell ed., 11th ed. 1995). The trial court’s ruling thus boils down to the proposition that (footnote continued) recollection refreshed, it erred as a matter of law. See People v. Diaz, 97 N.Y.2d 109, 112 n.1 (2001) (sufficiency of record to support factual finding presents question of law subject to Court of Appeals’ review). -79- because Flynn did not use three specific words - “I don’t recall” - the defense was precluded from using her prior recorded statement to refresh her recollection. But there is no such requirement. To the contrary, “[i]t should be permissible to use a [prior statement] 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 her testimony.” 5 Robert A. Barker & Vincent C. Alexander, New York Practice Series, Evidence in New York State and Federal Courts § 6:80 n.12 (2012). That is exactly what the defense was seeking to do: use the insurance interview to help Flynn remember that she saw Tony hold Reister while the two were on the floor not for “a minute or so,” but rather only for “6 to 10 seconds.” b. The defense also should have been permitted to use the insurance interview with Flynn under the surprise doctrine. Even assuming that Flynn had testified unequivocally, the trial court’s ruling would still be erroneous as a matter of law. When measured against her prior statement, Flynn’s testimony - “a minute or so” “I don’t know” - demonstrated that she needed her recollection refreshed. That is, in fact, the fundamental premise of the “surprise” doctrine: if a party calls a witness to the stand in good faith reliance on a prior statement, the party should be free to use that statement to refresh the witness’s recollection if the witness gives inconsistent -80- testimony and, failing that, to show the circumstances which induced the party to call the witness. The doctrine was recognized by this Court as early as 1873, has been reaffirmed by the intermediate appellate courts in subsequent case law, and is well-recognized in the current edition of the leading treatise on New York evidence, Richardson.77 Here, the defense had every reason to expect that Flynn would adhere to her prior statement and corroborate the testimony of the two other eyewitnesses called by the defense that the entire incident was fleeting. Thus, when Flynn surprised the defense by failing to do so, the defense was entitled to use her prior statement to refresh her recollection. As the case law recognizes, this is not impeachment. 77 See Bullard v. Pearsall, 53 N.Y. 230, 231 (1873); Prince, Richardson on Evidence § 6- 222, at 370 (Richard T. Farrell ed., 11th ed. 1995) (“[W]hen 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’ recollection.”). See also Brown v. W. Union Tel. Co., 26 A.D.2d 316, 319 (4th Dep’t 1966) (“A witness’ memory may be refreshed by directing attention to a prior inconsistent statement in order to induce a correction of testimony or explain an apparent inconsistency.”); In re Estate of Cinque, 25 A.D.2d 752, 752 (2d Dep’t 1966) (Surrogate erred by “not permit[ting] appellant to refresh a witness’ recollection after ‘surprise’ testimony had been adduced”); People v. Cascia, 191 A.D. 376, 381 (2d Dep’t 1920) (“where a counsel is surprised at the testimony of his witness he may refresh the recollection of the witness by calling attention to prior statements, and may probe his conscience for the purpose of compelling him to testify to the truth”). -81- 2. To the extent CPL 60.35 was correctly interpreted to forbid the use of Flynn’s prior statement, the statute is unconstitutional on its face and as applied. In any event, under the Due Process and Confrontation Clauses of the United States Constitution, as well as the Confrontation Clause of the New York State Constitution, a defendant has the right to confront and cross-examine the witnesses against him. U.S. Const. amends. VI, XIV; N.Y. Const. art. I, § 6. Integral to due process is the defendant’s right to “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984); People v. Hudy, 73 N.Y.2d 40, 57 (1988) (trial court’s discretion “is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers”). Applying these fundamental constitutional principles, this Court recognized in People v. Williams, 81 N.Y.2d 303, 313 (1993), that an evidentiary rule cannot stand as an immutable barrier to an accused’s right to present a defense. According to Williams, a rule “is most likely to be found arbitrary” and in violation of defendant’s constitutional rights “when it is applied by a court without due consideration of the individualized circumstances and interests present in the matter before it.”78 Id. 78 Under Rock v. Arkansas, 483 U.S. 44, 56 (1987), the party witness rule would be unconstitutional on its face if it is “arbitrary or disproportionate to the purposes” it is designed to -82- In light of these standards, a construction of the limitation on “impeaching” one’s own witness in CPL 60.35 such that the statute is violated by confronting the witness with his or her prior statement and using that statement to refresh the witness’s recollection would render the statute unconstitutional. Look at the “individualized circumstances” presented here: • The prosecution flew Flynn back from Florida so that she could testify as a prosecution witness. If she had been called by the prosecution, the defense would have had free rein to use the insurance interview to impeach Flynn if she gave inconsistent testimony. See pp. 27-29, su- pra. • After meeting with the prosecution, Flynn refused defense counsel’s request to interview her. Id. • The prosecution, which had a copy of Flynn’s prior statement, then made a tactical decision to drop Flynn as a witness at the last minute. Id. • Relying on her prior recorded statement, the defense then called Flynn, who, after having met with the prosecution, walked away from (footnote continued) serve, which is especially likely to be the case when the rule provides for a per se prohibition. The party witness rule would be unconstitutional as applied if it operated to deny Oddone “a fair opportunity to defend against the State’s accusations.” See Chambers v. Mississippi, 410 U.S. 284, 294-98 (1973). -83- her prior, unequivocal statement and gave equivocal testimony harm- ful to the defense on one of the core issues in the case: how long the incident lasted. Id. • The prosecution then misquoted Flynn’s testimony in summation, and argued from that deliberate misstatement that Flynn, a defense wit- ness, had given testimony supporting the prosecution. A5599:1-3 (“Megan Flynn even told you, the defense’s own witness, told you it was one to two minutes.”). Compare A3817:3-9 (“a minute or so. I don’t know.”). • The prosecution also exploited the uncertain nature of Flynn’s testi- mony in summation to attack the credibility of the entire defense case. A5613:2-4 (unlike the defense, “I am not putting people on the stand who are not certain about what they saw.”). Yet the defense was never permitted to even try to refresh Flynn’s recollection and, failing that, confront her with her prior statement and thereby explain to the jury why the witness had been called. This was a clear violation of Tony’s right to due process and to confront witnesses, rights guaranteed by the New York State and United States Constitutions. In Chambers v. Mississippi, 410 U.S. 284 (1973), the U.S. Supreme Court recognized that the common law party witness rule can operate to -84- impermissibly interfere with a defendant’s rights under the Confrontation and Due Process Clauses. Id. at 295-98. According to the Court, the rule “bears little present relationship to the realities of the criminal process” and “has been condemned as archaic, irrational, and potentially destructive of the truth-gathering process.” Id. at 296 & n.8. The passage of time has made New York’s “archaic” party witness rule even more of an outlier.79 At this point, vestiges of the rule remain in only 12 other states. Barbara E. Bergman & Nancy Hollander, 2 Wharton’s Criminal Evidence § 9:5, n.51 (15th ed. 2010). In all of these other states, and in federal court, but not New York, the defense would have been able to use Flynn’s prior recorded statement under either a statutory or common law exception to the rule.80 New York thus 79 “[H]aving been drafted prior to the electronic era, [CPL 60.35] does not even permit a statement recorded on video tape to be admitted.” Peter Preiser, Practice Commentary, McKinney’s Cons. Laws of N.Y., CPL 60.35 (2003). 80 The party witness rule was rejected in the federal courts by no later than 1962, see, e.g., United States v. Freeman, 302 F.2d 347, 351 (2d Cir. 1962), and its abolition is memorialized by Federal Rule of Evidence 607. (“Any party, including the party that called the witness, may attack the witness’s credibility.”) Wharton’s Criminal Evidence lists 35 states that have abolished the party witness rule by enacting statutes or rules that essentially track the language of the Federal Rule. Barbara E. Bergman & Nancy Hollander, 2 Wharton’s Criminal Evidence § 9:5 n.51 (15th ed. 2010). An additional 5 states have also abolished the party witness rule by statute or rule using language substantially similar to that of the Federal Rule. See Ark. R. Evid. 607; Ga. Code Ann. § 24-6-607; Mich. R. Evid. 607; Nev. Rev. Stat. § 50.075; S.D. Codified Laws § 19-14-8. One state has abolished the rule by common law. See State v. Blankenship, 830 S.W.2d 1, 9 (Mo. 1992). Although the remaining 8 states do not borrow the language of the Federal Rule, they too have statutes or rules in force which allow a calling party to impeach its own witness. See Cal. Evid. Code §§ 770, 1235; Ill. R. Evid. 607; La. Code Evid. Ann. 607; Mass. Gen. Laws Ann. Ch. 233, § 23; N.J. R. Evid. 607; Ohio R. Evid. 607; R.I. R. Evid. 607; Va. Code Ann. § 8.01-403. -85- stands alone in the nation as precluding the use of a witness’s prior statement to impeach one’s own witness. This Court therefore should not endorse a construction of the concept of impeachment in CPL 60.35 to prohibit the use of a prior inconsistent statement to refresh a witness’s recollection. See People v. Correa, 15 N.Y.3d 213, 232 (2010) (“Where the language of a statute is susceptible of two constructions, the courts will adopt that which avoids injustice, hardship, constitutional doubts or other objectionable results.” (citation omitted)). But to the extent CPL 60.35 cannot be so construed, it should be invalidated. (footnote continued) In 12 of the 49 states, a factual showing and/or a procedural step must be satisfied before a calling party can impeach its own witness, none of which are implicated here. Three states recognize the surprise doctrine. See Wilkins v. State, 603 So. 2d 309, 322 (Miss. 1992); N.J. R. Evid. 607; State v. Burke, 574 A.2d 1217, 1227 (R.I. 1990). Ohio also recognizes the surprise doctrine but adds the requirement that the calling party show its witness’s testimony damaged its position before it can use the prior statement. See Ohio R. Evid. 607. Similarly, Virginia recognizes the surprise doctrine but provides that the witness must be given the opportunity to acknowledge or deny the prior statement. See Va. Code Ann. § 8.01-403; Maxey v. Commonwealth, 495 S.E.2d 536, 539 (Va. Ct. App. 1998). Four other states also permit the use of the prior statement so long as the witness has the opportunity to explain or deny the prior statement. See Cal. Evid. Code §§ 770, 1235; Mass. Gen. Laws Ann. Ch. 233, § 23; Weiland v. Vigil, 560 P.2d 939, 944-45 (N.M. Ct. App. 1977); State v. Gage, 302 N.W.2d 793, 798-99 (S.D. 1981). Three states permit impeachment so long as the witness’s testimony directly contradicts the prior statement or is damaging to the party’s position. See Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004); Ill. R. Evid. 607; State v. Hobson, 671 P.2d 1365, 1378 (Kan. 1983). The federal courts and a significant number of states do prohibit a party from impeaching its own witness as a mere subterfuge for presenting otherwise inadmissible evidence, something that, again, is not an issue in this case. See, e.g., United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984) (Posner, J.) (collecting federal cases); Trawick v. State, 86 So. 3d 1105, 1110 (Ala. Crim. App. 2011); Conn. Code Evid. § 6-4; Griffin v. State, 754 N.E.2d 899, 904 (Ind. 2001). -86- POINT II THE VERDICT MUST BE SET ASIDE BECAUSE TONY WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY. A. The United States and New York Constitutions and the CPL all guarantee a criminal defendant the right to an impartial jury. “Nothing is more basic to the criminal process than the right of an accused to a trial by an impartial jury. The presumption of innocence, the prosecutor’s heavy burden of proving guilt beyond a reasonable doubt, and the other protections afforded the accused at trial, are of little value unless those who are called to decide the defendant’s guilt or innocence are free of bias.” People v. Branch, 46 N.Y.2d 645, 652 (1979). Thus, “bias or prejudice of even a single juror would violate [the defendant’s] right to a fair trial.” Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc). Such a constitutional violation constitutes a structural defect in the trial, and it is not subject to harmless error analysis. People v. Estella, 68 A.D.3d 1155, 1158 (3d Dep’t 2009); Dyer, 151 F.3d at 973 n.2. While “[g]enerally, a jury verdict may not be impeached by probes into the jury’s deliberative process . . . a showing of improper influence [upon a juror] provides a necessary and narrow exception to the general proposition.” People v. Maragh, 94 N.Y.2d 569, 573 (2000). That circumstance exists where the -87- verdict is based on information or considerations extraneous to the evidence adduced at trial. See, e.g., People v. Brown, 48 N.Y.2d 388 (1979) (jury’s consideration of extra-judicial “test” conducted by juror required reversal). Sworn statements of jurors may be used to demonstrate improper extraneous influence, as both this Court and the United States Supreme Court have long held. See People v. De Lucia, 20 N.Y.2d 275, 279 (1967) (“Statements concerning outside influences on a jury . . . should be admissible to show that the defendant was prejudiced.”); Mattox v. United States, 146 U.S. 140, 148 (1892) (“There is, however, a recognized distinction between what may and what may not be established by the testimony of jurors to set aside a verdict,” such that a juror may testify to improper external influences).81 81 The right to an impartial jury is also protected by CPL 330.30(2), which authorizes the trial court to set aside a guilty verdict if the defendant demonstrates “[t]hat during the trial there occurred, out of the presence of the court, improper conduct by a juror, or improper conduct by another person in relation to a juror, which may have affected a substantial right of the defendant and which was not known to the defendant prior to the rendition of the verdict.” And it is protected by CPL 270.35(1), which provides that if, before the jury renders its verdict, a seated juror engages in “misconduct of a substantial nature” or is determined to be “grossly unqualified,” “the court must discharge such juror.” See People v. Buford, 69 N.Y.2d 290, 298 (1987) (rule is meant to ensure that a defendant will not be convicted by a juror who “‘possesses a state of mind which would prevent the rendering of an impartial verdict’”). -88- B. Tony’s right to an impartial jury was violated by the participation of two jurors who were biased by extra- judicial events during the course of the trial. As shown below, Tony’s right to an impartial jury was violated by the participation of two biased jurors, F.O. and T.B..82 1. F.O. was biased by the pending prosecution of her son by the Suffolk County District Attorney. The record conclusively demonstrates that an improper, external influence on F.O., the holdout juror for acquittal, resulted in juror bias that deprived Tony of his right to an impartial jury. a. F.O. was biased as a matter of fact. For eight days of deliberations, F.O. voted to find Tony not guilty. Then, on Saturday, December 12, 2009, F.O.’s son was arrested in Suffolk County and charged with a Class D felony, six drug-related misdemeanors, and three traffic violations. A71. F.O. spent Sunday, December 13, frantically trying to borrow the $7,500 necessary to bail her son out of jail, and then waiting at the Riverhead Correctional Facility - the very place where Reister had worked - for 82 The Appellate Division did not expressly address any of these issues in its decision. CA2-4. Nevertheless, the trial court’s rulings are all subject to de novo review because it applied the wrong legal standard in evaluating whether F.O. and T.B. were biased and because it summarily dismissed F.O.’s admission of bias without holding a hearing. See People v. Borges, 69 N.Y.2d 1031, 1033 (1987) (“[W]here, as here, the lower courts have applied an incorrect legal standard, an issue of law reviewable by this court is presented.”); People v. Harris, 19 N.Y.3d 679 (2012); People v. Rickert, 58 N.Y.2d 122, 132 (1983) (where lower court, “in exercising its discretion, fail[ed] to take into account all the various factors entitled to consideration,” question of law presented for Court of Appeals’ review). -89- her son to be released. F.O. was so distraught that Sunday that her family implored her not to go back to court to resume deliberations with the rest of the jury on Monday. But F.O. did return and, after just a few hours of deliberations, violated her conscience and changed her vote from “not guilty” to “guilty.” A64-65, 67. The external influence on F.O. is clear: she was suddenly beholden to one of the parties to the case. Her son faced prosecution by the very same D.A.’s Office that was seeking a vote of “guilty” from F.O. and her fellow jurors. And because of the misconduct of T.B., F.O. believed (correctly) that the D.A.’s Office knew that she was the lone holdout for acquittal. See pp. 44-45, supra. In F.O.’s own words, the stakes could not have been higher: “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.” A66. “[M]y son’s arrest definitely influenced my decision as I was deeply concerned about being there for him and how he would be affected if the District Attorney’s Office knew that I was the only Juror who was voting not guilty.” A66.83 83 Indeed, the prosecution has conceded the severe prejudice of having a juror whose son is simultaneously being prosecuted by the same office. After receiving Tony’s CPL 330.30 motion, the prosecution sought and received leave of court to recuse itself from the prosecution of F.O.’s son. A391. See Schumer v. Holtzman, 60 N.Y.2d 46, 55 (1983) (disqualification of a prosecutor required “to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence”). -90- F.O. could not be expected to “leave h[er] kinship at the jury room door” and “remain impartial and objective when a blood relative has a stake in the outcome.” Dyer, 151 F.3d at 982. Not only was there a “‘substantial risk of prejudice to the rights of the defendant,’” People v. Romano, 8 A.D.3d 503, 504 (2d Dep’t 2004), there was actual prejudice. The sequence of events here - eight days of voting “not guilty,” followed by her son’s arrest, followed on the very next day of deliberations by a vote of “guilty” - is clear evidence that F.O.’s vote on the ninth day of deliberations was not “based upon the evidence developed at the trial,” Morgan v. Illinois, 504 U.S. 719, 727 (1992), but rather the external influence of her son’s arrest. See, e.g., People v. Rukaj, 123 A.D.2d 277, 278 (1st Dep’t 1986) (new trial ordered “in light of the jury’s relatively quick turnaround in reaching agreement” after prejudicial remark by a court officer).84 b. F.O. was biased as a matter of law. Even if, contrary to fact, F.O. had insisted that she was able to remain impartial, Tony would still be entitled to a new trial. The guarantee of an impartial jury provided by the New York State and United States Constitutions requires that 84 The prejudice to Tony is self-evident, and far more severe than in other cases in which our courts have set aside convictions. See, e.g., Maragh, 94 N.Y.2d at 575 (jury verdict properly set aside where a nurse-juror’s opinions directly affected the verdict); Rukaj, 123 A.D.2d at 278 (new trial ordered where juror testified that she “voted for conviction because of her concern about a lengthy sequestration even though she still believed the defendant to be not guilty”); People v. Eadie, 83 A.D.2d 773, 774 (4th Dep’t 1981) (new trial ordered where “one juror testified at the posttrial hearing that the lateness of the hour and the possibility of sequestration influenced the verdict”). -91- bias be implied as a matter of law where a juror’s “partiality may be presumed from the circumstances.” Hunley v. Godinez, 975 F.2d 316, 318 (7th Cir. 1992); see also 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”). The decision of the United States Court of Appeals for the Fifth Circuit in Brooks v. Dretke, 418 F.3d 430 (5th Cir. 2005), is directly on point. Brooks was convicted of capital murder in Texas state court. The morning the penalty phase of his trial was to begin, one of the jurors, Garcia, was arrested for a misdemeanor carrying a penalty of up to one year in prison. Garcia informed the court that the charge would not impede his ability to be fair, and the trial court denied Brooks’ motion for a mistrial. 418 F.3d at 431. The Fifth Circuit reversed. It held that Brooks was entitled to federal habeas relief and set aside his sentence, holding that under the Sixth Amendment bias had to be attributed to Garcia as a matter of law, despite his protestations of impartiality. The court held that the “factual circumstances surrounding this juror - in particular, the power of the District Attorney, and the timing and sequence of events” alone compelled the conclusion that the defendant’s constitutional rights had been violated. 418 F.3d at 435. -92- When it later denied rehearing en banc, the Fifth Circuit concluded: “The prosecutor’s power over Garcia presented an intolerable risk, one that denied Brooks his constitutionally entitled impartial jury.” Brooks v. Dretke, 444 F.3d 328, 332 (5th Cir. 2006). To emphasize the point, the Fifth Circuit ruled: “no reasonable jurist could disagree with our legal conclusion.” Id. Tony’s showing of prejudice is much stronger than that made in Brooks. F.O.’s son faced a far more serious charge than did Garcia. The fact that F.O. changed her vote after her son was arrested, within hours after she returned to deliberations, is conclusive evidence that the arrest affected her vote - evidence that was completely lacking in Brooks. And in Brooks, Garcia insisted that despite the pending prosecution he remained impartial. F.O. admits that because of the pending prosecution, she was not impartial. c. None of the grounds offered by the trial court for rejecting Tony’s motion to set aside the verdict can be sustained. The trial court nevertheless denied Tony’s CPL 330.30 motion, offering four grounds for its decision. Not one of them withstands scrutiny. 1. Without ever hearing her, the trial court simply asserted that F.O., in fact, had not been influenced by the arrest of her son. The court reached this conclusion by reasoning that because F.O. had reported instances of misconduct by other jurors, if she really had been affected by her son’s arrest, she -93- would have reported the arrest when she came back to deliberate on Monday morning. A14. That conclusion simply defies common sense; the fact that F.O. reported misconduct by other jurors does not mean that F.O.’s failure to report her own bias means that she was not biased. As F.O. explained in her affidavit, and as common sense confirms, the reason she did not come forward is because she feared that “it would only make things worse for [her] son.” A66. To her credit, F.O. voluntarily came forward after the fact to admit “I should have said ‘not guilty’ when the Jury was polled, but I didn’t. I was scared. I didn’t have the courage then, but I do now, although in truth I am still extremely frightened of the wrath of the District Attorney’s Office and law enforcement. But I know that it’s the right thing to do. I beg the Court’s and the defendant’s forgiveness . . . .” A68. The court had no basis to reject F.O.’s sworn statement out of hand.85 2. The court simply applied the wrong standard when it rejected Tony’s showing that he had been denied his constitutional rights. According to the trial court, only two kinds of bias were recognized by this Court in People v. 85 If the trial court had any rational basis for questioning F.O.’s sworn statement that the arrest of her son influenced her vote, under CPL 330.40(2)(d)-(f), it was required to hold a hearing. Indeed, the United States Supreme Court has held that due process requires such a hearing. Smith v. Phillips, 455 U.S. 209, 221 (1982). But there was no basis for questioning the affidavit and no need for a hearing. As the Fifth Circuit recognized in Brooks, on the objective facts here alone - the arrest of F.O.’s son on Saturday, followed by F.O.’s decision to change her vote on Monday - there can be no question that F.O.’s impartiality was seriously compromised. -94- Brown, 48 N.Y.2d 388, 393 (1979): “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. But nothing in Brown remotely suggests that these are the only possible types of improper influences on a jury. In fact, Brown holds precisely the contrary: “Because juror misconduct can take many forms, no ironclad rule of decision is possible. In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered.” 48 N.Y.2d at 394. 3. The trial court simply mischaracterized the issue presented by the arrest of F.O.’s son when it concluded that there was no prejudice to Tony because “the arrest of F.O.’s son on drug charges had nothing to do with the homicide case on which she was deliberating, nor on her evaluation of the evidence presented at the subject trial.” A15. The constitutional violation does not rest on a claim that F.O. evaluated the evidence in this case differently because of her son’s arrest; on the contrary, F.O.’s affidavit makes clear that both before and after her son’s arrest she believed that Tony was innocent. It rests on the claim that F.O. was biased by an extraneous influence: her son’s arrest. 4. The trial court’s conclusion that Tony’s constitutional right to an impartial jury was protected by its instruction to the jurors that they should decide the case based solely on the evidence is also totally unfounded. A15. In -95- every case in which a post-trial motion of this sort is granted, the trial court instructed the jury to base its decision solely on the evidence. But, as the cases uniformly recognize, a generic jury instruction can never stand as a substitute for the constitutional guarantee of a trial by an impartial jury. 2. T.B. was biased by her mid-trial hiring by the Suffolk County Police Department. Tony’s constitutional rights were also violated by the trial court’s refusal to remove T.B.. The trial court found that T.B. had twice violated the court’s instructions by disclosing the state of jury deliberations. A5919:8-5920:13, 5960:1-12. To compound this, the defense learned during jury deliberations that when the trial ended, T.B. was going to work full-time for the Suffolk County Police Department. A5995:1-19. Nevertheless, the Court refused to dismiss T.B. as “grossly unqualified” under CPL 270.35(1). A6001:20-6003:22. On the question of whether T.B. had violated the court’s instructions, the court reasoned that the issue before it was whether T.B.’s disregard of the court’s instructions, standing alone, warranted her dismissal. A5961:1-5963:1. But the court was answering only half of the question raised by T.B.’s misconduct. The complete question was whether T.B.’s bias could be inferred from the fact that, in addition to ignoring the court’s instructions, she repeatedly lied to the court to stay on the jury. Compare United States v. -96- Daugerdas, 867 F. Supp. 2d 445 (S.D.N.Y. 2012) (vacating conviction where it was established post-trial that one juror lied about her background in order to be seated as a juror).86 The trial court, no doubt concerned that T.B.’s discharge would result in a mistrial in a case that had been ongoing for over two months, simply ignored this fact. The trial court also applied the wrong legal standard in considering whether the fact that T.B. had accepted a full-time job with the Suffolk County Police Department once she finished her jury service rendered her biased and unfit to continue to serve as a juror. The court reasoned that because T.B. had disclosed in jury selection that she was employed by the Suffolk County Department of Civil Service and thus had once worked for the Police Department as a floater in the past, she had no obligation to disclose that she was going to work for the Police Department full-time after she was discharged from jury service. A6003:5-22. But the trial judge did not consider, let alone decide, whether the change in T.B.’s employment status rendered her grossly unqualified and 86 See also People v. Havner, 19 A.D.3d 508, 508 (2d Dep’t 2005) (trial court properly discharged juror who “had disregarded its instructions by discussing the case outside the courtroom and then lied when questioned about the substance of the discussion”); People v. Rojas, 15 A.D.3d 211, 212 (1st Dep’t 2005) (trial court properly discharged juror who “improperly discussed the case, lied to the court about these discussions, and evinced a bias against the prosecution by the comments he made”). -97- biased as a matter of fact or law. It did. As the court totally failed to recognize, by virtue of her new job, if T.B. had every reason to curry favor with her new colleagues at the Police Department by voting to convict someone who the Department had worked so hard to prosecute, and had every reason to avoid putting herself in the position of having to explain why she had voted to acquit. The record thus plainly demonstrates that T.B. “possesse[d] a state of mind which would prevent the rendering of an impartial verdict.” Buford, 69 N.Y.2d at 298.87 87 The post-verdict affidavit from alternate juror C.D. only confirms the picture of T.B. as a juror who was deeply prejudiced against Tony, a juror who, before deliberations began, called Tony “‘a dick’ and ‘a prick,’ and ‘a sleaze’ and ‘a dirtbag’ and ‘arrogant’” in front of the other jurors. A73. And it paints a picture of a juror who repeatedly violated the trial court’s instructions during the course of the trial by discussing the case before deliberations began and considering extra-judicial evidence, such as news reports about the funding of Tony’s defense, facts that provide still additional grounds for setting aside the verdict. A72-75. See People v. Ryan, 19 N.Y.2d 100, 103 (1966) (“the jurors are not permitted to discuss the case among themselves until it is submitted to them.”). -98- POINT III THE PROSECUTOR’S FLAGRANT AND DELIBERATE MISCONDUCT IN SUMMATION VIOLATED TONY’S FIFTH AMENDMENT RIGHT TO REMAIN SILENT AND DENIED HIM A FAIR TRIAL. At the bedrock of our criminal justice system is the principle that while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935); see U.S. Const. amend. V. But striking foul ones is precisely what the prosecutor did in her summation in this case.88 It is hornbook law that a prosecutor may not directly or indirectly comment on a defendant’s decision not to testify at trial. See People v. Mirenda, 23 N.Y.2d 439, 457 (1969); People v. Hetenyi, 304 N.Y. 80, 87-88 (1952); Griffin v. California, 380 U.S. 609, 613-14 (1965). The prosecutor here violated this constitutional command by arguing three times that the jury could not find that Tony acted out of fright or panic in response to Reister’s attack because it had not heard testimony “from the witness stand” to prove what Tony was “thinking,” what 88 Whether prosecutorial misconduct on summation deprived the defendant of a fair trial is a legal question subject to this Court’s plenary review. People v. Ashwal, 39 N.Y.2d 105, 109- 10 (1976) (collecting cases); see also People v. Fielding, 158 N.Y. 542, 548 (1899) (the Court of Appeals will “rigidly enforce the general rule of this and many other states that requires a reversal whenever [prejudicial summation] error is raised by a proper exception”). -99- he “felt,” or what “was in [his] mind.” Adding to the prejudice, she argued: “I don’t recall anyone testifying to him being in fear or panic.” See p. 42, supra. There simply can be no claim that the prosecution’s remarks were proper. Tony was the only one who could testify to what he was thinking and feeling. George Blum, et al., 29 Am. Jurisprudence Evidence § 567 (2d ed.) (an individual’s state of mind may be proven only by declarations by that individual or by circumstantial evidence); Application of Frank, 14 A.D.2d 139, 143 (3d Dep’t 1961) (“A condition or state of mind may be shown by the accompanying circumstances as well as by the direct testimony of the party himself.” (internal quotation mark omitted)); see also Walters v. United States, 256 F.2d 840, 844 (9th Cir. 1958) (“Direct evidence of the state of mind of [the defendant] and of his knowledge and intent could only have been obtained if [the defendant] had himself given testimony.”). Thus, by repeatedly arguing that the jury should not conclude that Tony was in a panic because there was no testimony “from the witness stand” to prove it, the prosecution unconstitutionally commented on the fact that the only witness who could give that testimony - Tony - had not done so. See Griffin, 380 U.S. at 614 (Fifth Amendment violated where prosecution argued that guilt could be inferred because of the failure of the defendant to offer proof “peculiarly within the accused’s knowledge”). -100- Indeed, the case law recognizes that the very words that the prosecutor used here are improper because they seek to penalize the defendant for invoking his or her constitutional right to remain silent. See, e.g., People v. Carvalho, 256 A.D.2d 1223, 1223-24 (4th Dep’t 1998) (reversing based on prosecution’s statement that “[n]othing came in from that witness stand to contradict the things I’m telling you”); People v. King, 73 A.D.2d 895, 896 (1st Dep’t 1980) (improper remarks included “the People cannot be inside [the defendant’s] mind” and calling the defense counsel’s arguments “smoke screens” because “[t]here is no testimony”); Hetenyi, 304 N.Y. at 86 (reversing, among other things, on prosecution’s statements that “nobody in the wide world with one exception” could provide an exculpatory explanation of incriminating evidence). The Second Department did not even address the constitutional issue raised by the defense, making only the generic statement that all of the challenges to the propriety of the prosecution’s summation - which also included challenges to the ADA’s inflammatory and factually erroneous comments on the evidence - were without merit because they were either “fair comment on the evidence,” “responsive to arguments and theories presented in the defense summation” or “harmless error.” None of these rationales excuse the prosecution’s misconduct.89 89 Notably, the Second Department did not affirm on the grounds offered by the trial court when it rejected defense counsel’s request for a curative charge, i.e., that the prosecution “never -101- By arguing “Neither I nor defense counsel can tell you what he’s thinking. It has to be from the witness stand,” the prosecution did exactly what the Fifth Amendment prohibits: comment on Tony’s failure to testify. A5528:25- 5529:3. Nothing that defense counsel said in summation opened the door for the prosecutor’s jury argument. To be sure, defense counsel did argue that Tony did not act with criminal intent - that he held on to Reister because he was frozen in fear. But in making that argument, defense counsel properly rooted her claims in the evidence adduced at trial from the eyewitnesses.90 (footnote continued) specifically said that the defendant did not testify.” A5622:23-24. Indirect references to a defendant’s exercise of his or her right to remain silent are just as unconstitutional as direct references. See, e.g., People v. Jamal, 307 A.D.2d 267, 268 (2d Dep’t 2003) (reversing due to “thinly veiled” references to the defendant’s failure to testify (internal quotation mark omitted)); People v. Smith, 288 A.D.2d 496, 497 (2d Dep’t 2001) (reversing conviction where prosecutor made “veiled” references to defendant’s decision not to testify); People v. Vario, 257 A.D. 975, 975 (2d Dep’t 1939) (reversing due to “covert references” to defendant’s decision not to testify). 90 For example, in the very same portion of the summation in which defense counsel argued to the jury that Tony was frozen in a panic, defense counsel argued that this had been established by the testimony from the prosecution’s witnesses and went through the testimony of those witnesses, one by one: “[John Cato] said, ‘I was just trying to hit the guy, wake him up and make him realize what he was doing, . . . . Mike Pacella says he kicks Tony in the head and he pulls him by the sides of his mouth . . . . Austin Everhart said he punches Tony in the ribs and he pulls his legs upward as hard as he can . . . . Austin Everhart said - He said, ‘When I was in the room at that time I don’t remember hearing, I don’t have a sense of sounds or what people were yelling.’ ‘I couldn’t even tell if there was still music playing at that time . . . . I asked [Mike Pacella], ‘You’re pulling the guy as hard as you can . . . for what, a couple of seconds only,’ . . . He said, ‘Well, I don’t know, seemed like forever, I don’t have a stop watch.’ I asked him, ‘Because you[r] adrenaline is going, right, I mean, it’s hard to you know, you’re kind of panicked.’ He said, ‘Absolutely, very panicked.’” A5392:4-6, 5397:24-5398:1, 5398:3-5, 5399:22-5400:2, 5403:13-23. Defense counsel then asked the jury: “[These other witnesses] don’t know if other people are there and intervening simultaneously so why is [Tony] expected to realize and to recognize and to be aware of everything that’s happening.” A5402:21-25. -102- The prosecution was, of course, free to respond in kind and point to evidence from eyewitnesses on what they saw and heard to establish Tony’s mental state and to argue that the jury could infer that Tony acted with criminal intent based on that testimony. That is fair comment on the evidence. That is what prosecutors do every day in courtrooms across the country. Fair comment became unfair when the prosecution argued three times that there was no evidence “from the witness stand” establishing Tony’s state of mind. Indeed, if the rule were otherwise, the fair comment exception would swallow the rule and make the Fifth Amendment a dead letter. Any argument that defense counsel makes to negate criminal intent could always be met with the argument: “You didn’t hear it from the witness stand.” In addition to all of this, the prosecutor crossed the line when she repeatedly violated the court’s instructions by making inflammatory arguments for conviction on the basis of evidence that the trial court excluded, even after the defense’s objections were sustained. See People v. Riback, 13 N.Y.3d 416, 423 (2009).91 91 Among other things: (a) the prosecutor purposefully made inflammatory remarks about Reister’s family designed to appeal to the jury’s sympathy (A5564:23-5565:10) and made the same argument again even after the court sustained the defense’s objection (A5565:4-10); (b) referred to Reister’s “act of kindness” in donating his organs (A5533:12-22) despite earlier rulings by the trial court specifically barring such references (A3615:20-24) and continued to do so even after the trial judge sustained the defense’s objection (A5533:25-5534:3); (c) shamelessly departed from the trial evidence in impugning the motives of one of the two -103- Finally, the Second Department’s unexplained conclusion that the violation of Tony’s Fifth Amendment right could be dismissed as harmless error only serves to emphasize the lack of seriousness that the court gave to these issues. Prosecutorial infringement on a defendant’s Fifth Amendment right is an error of constitutional dimension that requires reversal unless “there is no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt.” People v. Crimmins, 36 N.Y.2d 230, 237 (1975). In a case in which there was conflicting eyewitness testimony and (generously to Dr. Wilson) conflicting expert testimony, in a case in which the jury deliberated for nine days, there is simply no basis for concluding that this exacting standard was met. POINT IV THE TRIAL COURT ERRED WHEN IT REFUSED TO GIVE THE JURY AN INTOXICATION CHARGE. The trial court erred as a matter of law and deprived Tony of a fair trial by refusing to give the jury a charge that it could consider whether Tony was (footnote continued) defense eyewitnesses (compare A5612:12-17 (summation) with A5070:23-5071:7 (Cohen)); and (d) further departed from the trial evidence when she repeatedly argued that Tony must have intended to kill Reister by analogizing Tony’s actions to an intentional drowning even though Dr. Wilson testified point blank that Tony did not kill Reister by cutting off his air supply (A5542:14-19, 5599:12-18, 5600:18-21, 5616:8-13). -104- intoxicated in evaluating whether he formed the requisite intent to cause Reister serious physical injury.92 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.” People v. Perry, 61 N.Y.2d 849, 850 (1984); see People v. Sirico, 17 N.Y.3d 744 (2011); Penal Law § 15.25. In making a determination whether the “relatively low threshold” warranting an intoxication charge has been satisfied, People v. Rodriguez, 76 N.Y.2d 918, 920 (1990), a court must view the evidence “in the light most favorable to the defendant,” Farnsworth, 65 N.Y.2d at 735. Moreover, the defendant need not demonstrate how much alcohol he or she consumed prior to the offense. Rodriguez, 76 N.Y.2d at 920 (“evidence that defendant’s mental capacity has been diminished by intoxicants” is sufficient to justify intoxication charge; record need not contain evidence regarding “nature or quantity” of those intoxicants). Nor does the defendant need to show that he or she was in a stupor or incoherent. See, e.g., People v. Smith, 43 A.D.3d 475, 475-76 (2d Dep’t 2007) (intoxication charge warranted despite uncontested evidence that 92 The failure to give an intoxication charge where one is warranted is an error of law, requiring reversal. People v. Farnsworth, 65 N.Y.2d 734, 735-36 (1985); People v. Perry, 61 N.Y.2d 849, 850 (1984). -105- defendant was “walking fine,” was speaking clearly and “understood everything that was said”). The arresting officer, John Rodecker, an 11-year police veteran with over 50 DWI arrests under his belt, wrote in his own hand in a contemporaneous post-arrest record that Tony was “intoxicated.” A second officer, Detective Nordt, independently noted on a suicide prevention form that Tony was “apparently under the influence of alcohol or drugs.” A6704-6706; A6709-6710. This evidence, viewed in the light most favorable to the defense in and of itself, establishes that Tony was entitled to an intoxication charge. But this authoritative evidence from the police did not stand alone. In addition, an eyewitness testified that he believed that he saw Tony playing a drinking game for 45 minutes with friends. Another eyewitness testified that Tony was “buzzed.” A2979:12-24 (Fallo); A5059:2-9 (Cohen). And then of course there is the objective fact that Tony was dancing on a table at 1:00 in the morning with a perfect stranger at a crowded Hamptons brewery restaurant that was featuring drink specials at the very height of the summer season. The Second Department’s ruling that “there was insufficient evidence presented regarding the quantity of liquor consumed by the defendant and its consequent effects to warrant a charge on intoxication” cannot be reconciled with the controlling case law. The request for an intoxication charge here did not rest -106- merely on “bare assertions by a defendant concerning his intoxication.” Sirico, 17 N.Y.3d at 745. And this is not a situation, like Sirico, in which the defendant’s own testimony negated the claimed defense and established that the defendant’s actions were “purposeful.” Id. To the contrary, viewing the evidence in the light most favorable to Tony, the jury was entitled to accept the accuracy of official records prepared by experienced officers and disbelieve the subsequent claim of one of those officers over one year later that his entry in an official police record was “mistaken.” See People v. De Tore, 34 N.Y.2d 199, 207 (1974) (“there was the one substantial recantation with the witness explaining his reasons for the change, reasons that the jury was entitled to accept or reject”). And the jury was entitled to conclude, on the basis of those records, on the basis of Rodecker’s testimony that Tony smelled of alcohol, and on the basis of all of the other evidence that Tony’s capacity to form a criminal intent was diminished. There should have been an intoxication charge. -107- CONCLUSION Tony’s conviction is an injustice. The verdict is not supported by the admissible evidence. It was the result of a trial permeated with error and was rendered by a biased jury. The Decision and Order of the Appellate Division should be reversed and Tony should be released from prison. Dated: May 24, 2013 Of Counsel: Bernard W. Nussbaum George T. Conway III Charles D. Cording Scott M. Danner Dana J. 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. By ________________________________ Sarita Kedia 5 East 22nd Street, Suite 7B New York, New York 10010 (212) 681-0202 Attorneys for Defendant-Appellant Anthony Oddone