The People, Respondent,v.Chadon Morris, Appellant.

Brief

N.Y.September 4, 2013

To be argued by BARRY STENDIG (20 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - CHADON MORRIS, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY BARRY STENDIG Attorneys for Defendant-Appellant 2 Rector Street, 10th Floor New York, N.Y. 10006 (212) 693-0085 December 17, 2012 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . 1 ARGUMENT CONTRARY TO THE PEOPLE’S ARGUMENT, THE UNCHARGED GUNPOINT ROBBERY EVIDENCE WAS INADMISSIBLE BECAUSE IT WAS NOT PROBATIVE OF ANY MATERIAL ISSUE AT TRIAL . . . . . . . . 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 9 i TABLE OF AUTHORITIES People v. Alfaro, __ N.Y.3d ___, 2012 WL 5255454 . . . . 6 People v. Blair, 90 N.Y.2d 1003 (997) . . . . . . . . . . 3 People v. Crandall, 67 N.Y.2d 117 (1986) . . . . . . . . 5 People v. Nieves, 67 N.Y.2d 125 (1986) . . . . . . . . . 2 People v. Rezek, 3 N.Y. 2d 385 (2004) . . . . . . . . passim People v. Robinson, 93 N.Y.2d 986 (1999) . . . . . . . . 6 People v. Robinson, 273 N.Y. 438, 446 (1937) . . . . . . 7 People v. Rojas, 97 N.Y.2d 32 (2001) . . . . . . . . . 7-8 People v. Tosca, 98 N.Y.2d 660 (2002) . . . . . . . . . . 7 People v. Tosca, 287 A.D.2d 330 (1st Dept. 2011) . . . . 7 People v. Vargas, 88 N.Y.2d 856 (1996) . . . . . . . . . 5 ii PRELIMINARY STATEMENT This brief is submitted in reply to the People’s responding brief, received on December 5, 2012. CONTRARY TO THE PEOPLE’S ARGUMENT, THE UNCHARGED GUNPOINT ROBBERY EVIDENCE WAS INADMISSIBLE BECAUSE IT WAS NOT PROBATIVE OF ANY MATERIAL ISSUE AT TRIAL. ARGUMENT Background evidence about an uncharged crime is not automatically admissible; when the defense does not challenge the propriety of the police action, the evidence should be precluded, and the court should simply instruct the jury that the police conduct was lawful and that they are not to speculate as to its reasons. People v. Rezek, 3 N.Y. 2d 385, 390 (2004). When a defendant, who is charged with possession of a gun or drugs, admits possessing the contraband the police recovered from him, the propriety of the police conduct is not an issue at a trial. Id. at 390. Here, defense counsel informed the court that the defense would not challenge the propriety of the police stop of appellant and requested that the court limit the police to testifying only that they stopped him. Counsel also asked the court to instruct the jury that it was not to consider the circumstances of the stop because the issue had already been resolved. And, as part of his temporary innocent possession defense, appellant admitted possession of the gun the police recovered from him. Nevertheless, the People argue that the trial court properly admitted, as “background evidence,” a 911 call reporting a gunpoint robbery and police testimony that appellant fit the caller’s description of the robber, to complete the narrative and explain why the police acted as they did. The People’s argument ignores Rezek’s explicit rules and that the uncharged gunpoint robbery evidence had no probative value because the propriety of the police conduct was not an issue at trial. The People essentially contend, in various formulations, that background evidence of an uncharged crime is always admissible to complete the narrative regardless of whether the Molineux evidence is probative.1 The uncharged gunpoint robbery evidence was relevant, according to the People, to explain why the police stopped and searched appellant, and to prevent jury speculation that the police harassed him and were overly aggressive when he resisted arrest (Resp. Br., p. 34- 40, 52-53). Since defense counsel announced prior to trial 1The People’s alternate argument that appellant’s testimony opened the door to the introduction of the uncharged gunpoint robbery evidence (Resp. Br., p. 54, 56, fn. 24) was not proffered at trial and is therefore not preserved for this Court’s review. See People v. Maher, 89 N.Y.2d 456, 460, fn 1 (1997); People v. Nieves, 67 N.Y.2d 125, 135-136 (1986). -2- that the defense would not contest the propriety of the police conduct, and appellant testified he possessed the gun that the police recovered from him, the defense had not “placed the propriety of the police action in issue,” and evidence of the uncharged gunpoint robbery should not have admitted. Rezek, supra, at 389-390; see People v. Blair, 90 N.Y.2d 1003, 1004 (1997) (The People's rebuttal testimony concerning an alleged drug transaction eight months before the charged crime “did nothing to refute defendant's claim that he had been framed, but merely tended to show his propensity to sell drugs”). Unable to explain convincingly that the propriety of the police conduct was an issue at trial, the People resort to reconstructing the trial court’s rationale that police conduct is “always an issue,” and that the jury might believe that the police were engaged in racial profiling (Resp. Br., p. 53-54). As demonstrated in appellant’s main brief (p. 19-20), this rationale, just a euphemism that uncharged crime evidence is always admissible, is wrong. Rezek, supra, at 390 (This Court’s previous Molineux “decisions should not be interpreted as automatically allowing the prosecution to introduce evidence of uncharged crimes merely because the evidence is said to complete the narrative or furnish background information.”). -3- The People twice unwittingly reveal their implicit contention that Molineux background evidence concerning the reason for the police conduct is always admissible to complete the narrative. First, Their contention that limiting the police testimony, as defense counsel suggested, “would have destroyed the continuity and coherence of the People’s case” (Resp. Br., 39-40) disregards the Rezek rejection of completing the narrative to justify the admission of background Molineux evidence when the correctness of the police conduct is not a trial issue. Rezek, supra, at 390- 391. Second, maintaining that the uncharged gunpoint robbery evidence would be admissible where the jury could not speculate that the police engaged in racial profiling even when the defendant is a Caucasian (Resp. Br., p. 63) is nothing more than an argument that Molineux background evidence is admissible in every case where the defendant is charged with possession of contraband. The People also claim that defense counsel’s request for charge that the jury not consider the circumstances of the stop because the issue had already been resolved was “a poor substitute” for the uncharged armed robbery evidence. According to the People, this evidence had “a broader purpose” to rebut a defense argument that the police officers were not credible and “beat up” appellant without justification (Resp. -4- Br., p. 52-54). But, the jurors did not need to hear evidence of the uncharged gun-point robbery to understand that the police, who had just recovered a gun from appellant, could justifiably consider him a threat to their safety and subdue him aggressively when he resisted arrest. See People v. Vargas, 88 N.Y.2d 856, 857 (1996)(“Although intent is one of the elements of a crime for which prior misconduct evidence may be admitted, evidence of prior misconduct to prove intent is unnecessary where intent may be easily inferred from the commission of the act itself”); see also People v. Crandall, 67 N.Y.2d 111, 117 (1986) (evidence of a prior drug transaction was not necessary to comprehend defendant's statement concerning the charged sale and could have been redacted “without distortion of its meaning”). Counsel’s “proposed solution” to limit the police testimony and instruct the jury as outlined in Rezek was also inadequate, the People claim, because it failed to “compensate the People for the loss of their evidence” and they were not required to accept a stipulation in lieu of evidence (Resp. Br., p. 57-59). “The loss of evidence” contention again just ignores the Rezek ruling. 3 N.Y. 3d at 390. Moreover, none of the cases cited by the People support their “loss of evidence” contention. Cases holding that uncharged crime evidence was “probative of a material issue at trial” (Resp. -5- Br., p. 59-60), e.g. People v. Alfaro, __ N.Y.3d ___,2012 WL 5255454, are inapposite because the police conduct was not an issue at appellant’s trial. Cases permitting the People to reject a stipulation and introduce Molineux evidence to prove a prima facia case (Resp. Br., p. 61), e.g. People v. Robinson, 93 N.Y.2d 986 (1999), are also irrelevant since the uncharged gunpoint robbery evidence here was not admitted to prove any of the elements of the charged crimes. To circumvent this Court’s holding in Rezek, the People contend that it is limited to its facts (Resp., Br., p. 48- 51). If that was the intention of this Court, it could have simply held that the uncharged crime evidence was inadmissible because Rezek was ultimately “cleared” of those charges and the trial court’s limiting instruction did not cure the prejudice of the Molineux evidence. 3 N.Y.3d 389. Instead, this Court specifically went on to point out that evidence of uncharged crimes is not automatically admissible as background evidence or to complete the narrative, and that when the defense does not challenge the propriety of the police conduct, a jury charge that the arrest was lawful and the jury were not to speculate as to its reasons is enough “to allay the prosecutor’s concern that the jury might, without guidance, stray from its appointed task.” Id. at 390-391. -6- Finally, the People incorrectly assert that, in People v. Tosca, 98 N.Y.2d 660 (2002), this Court implicitly held that a defendant’s proffered stipulation that the police were simply responding to a radio run, see People v. Tosca, 287 A.D.2d 330 (1st Dept. 2011), does not render inadmissible uncharged crime evidence that the defendant possessed a gun shortly before he was confronted by the police (Resp. Br., p. 59). In Tosca, this Court did not mention the proffered stipulation. And, the credibility of the police was apparently an issue at Tosca’s trial since the Appellate Division, First Department noted that, “under the circumstances,” the proposed stipulation “would have been inadequate to prevent the jury from speculating about facts not in evidence and from drawing unfair inferences concerning the officer’s credibility.” 287 A.D.2d at 330. As discussed in appellant’s main brief (p. 20-21), the court’s instructions that the uncharged gunpoint robbery evidence was admitted only to explain the police conduct could not dispel the prejudice to appellant’s temporary innocent possession defense. See People v. Robinson, 273 N.Y. 438, 446 (1937)(instruction to disregard witness’s testimony that the charged crime was merely “one of the various larcenies uncovered” by the prosecution “could not . . . cause the jurors to forget what they had been told”); see also People v. -7- Rojas, supra, 97 N.Y.2d at 36-37 (“It is axiomatic that propensity evidence invites a jury to misfocus, if not base its verdict, on a defendant's prior crimes rather than on the evidence—or lack of evidence—relating to the case before it.”).2 In sum, the trial court improperly permitted the People to introduce evidence of the uncharged gunpoint robbery because appellant did not challenge the propriety of the police conduct. Accordingly, his conviction should be reversed and a new trial ordered. 2The People’s argument that the prosecutor’s “restraint” essentially eliminated the prejudice of the uncharged gunpoint robbery - “it was as if the robbery had never occurred” - (Resp. Br., p. 42, 68) is refuted by the record. Two police officers testified to the contents of the radio run and that appellant fit the description of the robber, and the People introduced a recording the of the 911 call and a photo of appellant depicting the clothing he was wearing when he was arrested (See appellant’s main brief, p. 8-9). Contrary to the People’s claim, the “strong implication” was that appellant was the robber not that he was not. -8- CONCLUSION FOR THE REASONS STATED ABOVE AND IN THE MAIN BRIEF, THIS COURT SHOULD REVERSE THE APPELLATE DIVISION ORDER AND ORDER A NEW TRIAL. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Appellant _____________________________ By: BARRY STENDIG Of Counsel December 17, 2012 -9-