The People, Respondent,v.Walter Cates, Sr., Appellant.BriefN.Y.February 10, 2015 To be argued by BRUCE D. AUSTERN (15 MINUTES) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - APL-2014-00169 WALTER CATES, SR., Defendant-Appellant. BRIEF AND APPENDIX FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street, 28 Floorth New York, New York 10005 (212) 577-2523 (ext. 514) (212) 577-2535 (fax) baustern@cfal.org BRUCE D. AUSTERN Of Counsel September 9, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Exclusion of Defense Counsel from the Court’s Examination of Witness Gary Rose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Gary Rose’s Testimony.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Jerome Mitchell’s Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . 15 The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 The Verdict and the Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 The Appeal to the Appellate Division . . . . . . . . . . . . . . . . . . . . . . . . 20 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 APPELLANT WAS DENIED HIS RIGHT TO COUNSEL AT MATERIAL STAGES OF TRIAL WHERE THE COURT, OVER DEFENSE OBJECTION, EXCLUDED DEFENSE COUNSEL FROM TWO OFF-THE-RECORD IN CAMERA EXAMINATIONS OF THE MAIN PROSECUTION WITNESS ADDRESSING THE WITNESS’S MENTAL AND MEDICAL CAPACITY TO TESTIFY. U.S. CONST. AMEND. VI, XIV; N.Y. CONST. ART. I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 i APPENDIX Statement Pursuant to Rule 5531 .. . . . . . . . . . . . . . . . . . . . . . . . . A. 1 Certificate Granting Reconsideration and, Upon Reconsideration, Granting Leave to Appeal . . . . . . . . . . . . . . . . . A. 2 Order Denying Leave. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. 3 Appellate Division Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. 4 Certification of Accuracy of Appendix. . . . . . . . . . . . . . . . . . . . . A. 6 ii TABLE OF AUTHORITIES Cases Chapman v. California, 386 U.S. 18 (1967). . . . . . . . . . . . . . . . . . . . . . . . . 31 Kentucky v. Stincer, 482 U.S. 730 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Ahmed, 66 N.Y.2d 307 (1985). . . . . . . . . . . . . . . . . . . . . . . . . 4, 32 People v. Alvarez, 20 N.Y.3d 75 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Carr, 111 A.D.3d 472 (1 Dep’t 2013). . . . . . . . . . . . . . . . . . . . . 21st People v. Carracedo, 89 N.Y.2d 1059 (1997). . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Combest, 4 N.Y.3d 341 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Contreras, 12 N.Y.3d 268 (2009). . . . . . . . . . . . . . . . . . 23, 27, 28 People v. Crimmins, 36 N.Y.2d 240 (1975). . . . . . . . . . . . . . . . . . . . . . . . . 31 People v. Darby, 75 N.Y.2d 449 (1990). . . . . . . . . . . . . . . . . . 23, 24, 25, 26 People v. Dokes, 79 N.Y.2d 656 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Frost, 100 N.Y.2d 129 (2003). . . . . . . . . . . . . . . . . . . 3, 23, 24, 25 People v. Goggins, 34 N.Y.2d 163 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Lovett, 192 A.D.2d 326 (1 Dep’t 1977). . . . . . . . . . . . . . . . . . . 27st People v. McLean, 15 N.Y.3d 117 (2010). . . . . . . . . . . . . . . . . . . . . . . . 4, 32 People v. Morales, 80 N.Y.2d 450 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Ortega, 78 N.Y.2d 1101 (1991).. . . . . . . . . . . . . . . . . . . . . . . 24, 27 iii People v. Rosario, 9 N.Y.2d 286 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Sanders, 56 N.Y.2d 51 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Sprowal, 84 N.Y.2d 113 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Velasco, 77 N.Y.2d 469 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Cates, Sr., 92 A.D.3d 553 (1 Dep’t 2012). . . . . . . . . . . . . . . . 1, 20st People v. Wardlaw, 6 N.Y.3d 556 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . 31 United States v. Cronic, 466 U.S. 648 (1984).. . . . . . . . . . . . . . . . . . . . . . . 30 Constitutional and Statutory Authorities C.P.L. § 450.90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C.P.L. § 470.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 32 N.Y. Const art. I, § 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22, 23 P.L. § 125.25 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 U.S. Const. Amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22, 23 U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22, 23 iv COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : WALTER CATES, SR., : Defendant-Appellant. : ---------------------------------------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Judge of the Court of Appeals, granted June 25, 2014, appellant Walter Cates, Sr., appeals from an order of the Appellate Division, First Department, dated February 21, 2012, People v. Walter Cates, Sr., 92 A.D.3d 553 (1 Dep’tst 2012), affirming a judgment of the Supreme Court, Bronx County, rendered June 10, 2009, convicting appellant under Bronx County indictment 596/06, 1 of murder in the second degree (P.L. § 125.25[1]), and sentencing him to a prison term of 25 years to life (Carter, J., at trial and sentence). 1 No stay of execution has been sought. Appellant currently is serving his sentence. Codefendant Lee Carr was tried with appellant, and also sentenced on June 10, 2009, to a prison term of 25 years to life. On March 31, 2014, Judge Graffeo granted leave in codefendant Carr’s appeal, and that case is currently pending before this Court.2 Numerals in parentheses preceded by “A” refer to the trial transcript1 pages, as paginated in codefendant Lee Carr’s Appendix. Names preceding numerals refer to the witnesses who testified to the matter recounted, and the first mention of testifying witnesses are underlined. Appellant’s initial leave denial and later leave grant pursuant to reconsideration, and the Appellate Division decision, are attached to this brief as Appellant’s Appendix. Codefendant Tyshon Cates was tried with appellant, with a separate2 jury, which resulted in a mistrial. Tyshon Cates later pleaded guilty to manslaughter in the first degree, and, on June 22, 2009, was sentenced to a prison term of 6 years. Codefendant Walter Cates, Jr., pleaded guilty to manslaughter in the first degree, and, on June 10, 2009, was sentenced to a prison term of 15 years. Codefendant Raheen Davis, under separate Bronx indictment 18/2007, pleaded guilty to manslaughter in the first degree, and, on June 10, 2009, was sentenced to a prison term of 15 years. None of these appeals are relevant to appellant’s appeal before this Court. 2 QUESTION PRESENTED Whether appellant was denied the right to counsel at trial where the court excluded defense counsel from two off-the-record in camera examinations of the main prosecution witness regarding his mental and physical capacity to testify. U.S. Const. amend. VI, XIV; N.Y. Const art. I, § 6. SUMMARY OF ARGUMENT The main prosecution witness, Gary Rose, had two conversations with the trial court, examinations without the presence of defense counsel, and without a record created, regarding his mental and physical capacity to testify at appellant’s trial. No explanation exists in the record for defense counsel’s absence. There was no medical necessity presented requiring having such conversations prior to the arrival of counsel and the court reporter. Nor was there any discussion of the witness being afraid of appellant or other members of the defense. To the contrary, the court apparently believed it had the absolute right to speak with the witness in the absence of defense counsel. This belief is contrary to the longstanding and firmly stated law of this Court, that the exclusion of defense counsel from court proceedings should only occur in “the most unusual and exceptional circumstances.” People v. Frost, 100 N.Y.2d 129, 132, 134 (2003). As the 3 proceedings were material to the credibility and reliability of the testimony of a key People’s witness, the denial of counsel cannot be harmless. Accordingly, because no reason exists here for the exclusion of counsel, and counsel appropriately objected to the proceedings, the court violated appellant’s right to counsel and due process of law, and seeks reversal and a new trial. This Court has jurisdiction to entertain this appeal pursuant to C.P.L. § 450.90(1), and the issue raised is preserved for this Court’s review under C.P.L. § 470.05(2). The exclusion of defense counsel from the first examination of witness Gary Rose (which was unknown to the defense at the time) was a mode of proceedings error, demanding reversal despite the lack of objection. People v. McLean, 15 N.Y.3d 117, 121 (2010); People v. Ahmed, 66 N.Y.2d 307, 310-11 (1985). Moreover, the denial of counsel at the second examination the following week was also a mode of proceedings error, and was further fully preserved for appellate review by appropriate arguments by counsel (A. 1754, 1761-65, 1770). 4 STATEMENT OF FACTS Introduction Appellant and four others were charged with assaulting Matharr Cham in a physical fight inside an apartment. After that initial altercation, two codefendants were accused of strangling Cham, which caused his death. The main People’s witness, Gary Rose, who testified to seeing what occurred prior to the killing from a bedroom inside the apartment, had two unrecorded conversations with the court, which excluded counsel, with the second conversation occurring over counsel’s firm objection. The Exclusion of Defense Counsel from the Court’s Examination of Witness Gary Rose On Monday, April 27, 2009, the prosecutor announced that Gary Rose, the witness scheduled for the day, was late coming to the prosecutor’s office, was ill, and asked for an adjournment (A. 1756). The court announced that it had ordered the prosecutor to bring Rose to court so that it could “interview him in camera” (A. 1756). Counsel stated: I understand from [a prosecutor] - - she indicated she was going to obtain medical attention for Mr. Rose. If, in fact the People do that, I would ask 5 that his medical records be provided to the Court for an in camera review, if he comes in and if his illness - - if there is anything along the lines from intoxication to narcotics, anything like that, and we know from his sworn statement he’s a regular user of narcotics. I think that should be disclosed to defense as well. If he refuses medical attention - - [a prosecutor] indicated that he might refuse medical attention. If he’s unable to perform and he refuses medical attention, I think that’s something that should be disclosed. (A. 1757). Later, after the court spoke with Rose off-the-record, the court recounted it had also spoken to Rose off-the-record the previous Wednesday: For the record, on Wednesday shortly after I dismissed the juries, we got word that Mr. Gary Rose, who was supposed to be here first thing Wednesday, arrived. You know - - this was after the proceedings were over. I asked the People to have him brought over here to find out why he was late. He told us that he was late. He seemed to be in bad shape. But he told us, you know, he was running late. I instructed him that he had to be here today. I told him that he could be put in jail, but we weren’t going to do that, at this point, but that he had to be here at ten o’clock to be able to testify. 6 This morning, I’ve received a phone call from [a prosecutor] stating that although Mr. Rose was here, he was in no condition to testify. We had a discussion amongst the DA and defense lawyers at the bench. I’ve instructed everyone that I was going to speak to him in camera which I did off the record. I spoke to him this morning. He informed me that he suffers from migraines and that he needed a half day to recover. And I asked him if he was on drugs. He said, no. I asked if he was suffering from any alcohol problem. He said, no. I asked him if he’s on crack. He said, no. And he said he would be ready to go tomorrow. So, basically, that’s - - I ordered him to be here tomorrow and that’s where we stand. (A. 1759-61). Counsel argued that this was a denial of the right to counsel and requested transcripts of the proceedings: First and foremost, even though we all had a discussion before-hand, I think the Court agrees that there was a unanimous decision of the three defense lawyers that we wish to be present with our clients when the Court did the inquiry of Mr. Rose. When that was denied, we wish that the inquiry by the Court go on the record which was also denied. This was a request before the Court conducted the independent inquiry. . . . . 7 We were made aware today of the Court’s inquiry from Wednesday. If that was on the record, as well, we would like copies of that transcript. (A. 1761). The prosecutor stated: Mr. Rose told Your Honor and myself why he was not here at nine o’clock on Wednesday. He was late and he showed up at about . . . 11:15. It was late. He was held at the office and he came over here to explain to Your Honor why he was late. (A. 1770). The court ruled it had no obligation both to have counsel present and to have a court reporter record the proceedings: I don’t think there is any legal requirement for my discussions with him on . . . Wednesday or today to be on the record. Obviously, defense counsel will, you know, have a full range of cross examination. They can cross why he wasn’t here Wednesday. They can cross him why he wasn’t able to proceed today. You know, the jury is going to find out that we’ve been sitting around waiting for him. (A. 1770). Counsel argued the defense was harmed by not being present at the two discussions between witness Rose and the court: 8 The District Attorney’s Office spoke to him. The Court spoke to him. I have no records of either of this. If he gets on the stand and says something different from either of what he told them or told you, I assume what will happen at that moment is, someone will interrupt the proceedings and say, excuse me, he told me in my office or the Court will say, ladies and gentlemen of the jury, let’s stop here. Mr. Rose told me something different the other day because I wouldn’t have a record to cross examine him on. Only the Court would know and only the DA’s Office will know. And I will be stuck with Mr. Rose’s answer. Even if he’s telling the truth about this, it’s not always that way and I wouldn’t know because I don’t know Mr. Rose. (A. 1773-74). The court again told counsel that Rose had said he had a migraine, that he had needed twelve hours to recover, and that he had not used drugs or alcohol that day (A. 1774). Asked if he had had a migraine the previous Wednesday, the court said it had not asked, but the court told counsel that in its opinion, “he looked worse” the previous week, in that he looked “tired, disheveled and much more hyper that he is today” (A. 1775). Asked if it could be methadone withdrawal, the court did not know (A. 1775). 9 The People’s Case The morning of June 22, 2006, Officer Christopher Verde discovered a partially burned body in a dumpster in an industrial area of the northeastern Bronx (Verde: A. 1124-27). Aisha Jobe identified a photo of her son, Matharr Cham, with the nickname, “Mack,” as the deceased (Jobe: A. 1116, 1119-20, 1123). On June 23, 2006, Sergeant John Neesen received information from an anonymous phone caller to New York City’s Crime Stoppers Hotline (Neesen: A. 1171, 1178). The caller stated that “they” were cleaning a specific apartment in the Edenwald Houses in the central Bronx, where the person found burned in the dumpster had been killed (Neesen: A. 1179-80). She was insistent that the police had “got to get over there” quickly (Neesen: A. 1180). Neesen and other officers looked at police reports for the location, and discovered an open criminal complaint against appellant (Neesen: A. 1182-83). They also found photos of appellant (Neesen: A. 1182). Arriving at the location, the police knocked, and appellant opened the door, and stepped in the hallway (Neesen: A. 1185-86). Neesen smelled a strong odor, of what could have been ammonia or bleach, coming from 10 inside the apartment (Neesen: A. 1186). The police briefly spoke with appellant, and then told him he needed to come to the stationhouse with the officers (Neesen: A. 1186). Appellant said, “I’m not coming back to the precinct,” and fled into the apartment, with the police following him inside (Neesen: A. 1186-87). Police officers handcuffed appellant in the living room (Neesen: A. 1187). Hearing a voice in the back of the three-bedroom apartment, the police asked three other people who were also inside the apartment to leave (Neesen: A. 1187). Their names were Gary Rose, Thelma Padilla, and Aminata Richards (Neesen: A. 1196, 1216). The police did this so no one would be hurt (Neesen: A. 1188). The police observed puddles of liquid on the floor of the living room, with a strong smell and a fan directed at them (Neesen: A. 1189). There was a mop and bucket in the room (Neesen: A. 1190). On the floor of a bedroom, Neesen also observed a jug of “biowash fluid,” and two rubber gloves (Neesen: A. 1190). The police left to get a search warrant, and to have the crime scene unit return to examine the apartment (Neesen: A. 1191). Detective Christopher Florio, of the Crime Scene Unit, later examined the dumpster, 11 and also the apartment (Florio: A. 1263, 1266, 1269-70, 1279-80). What may have been blood was discovered on a sheet in the bathroom, but no other blood was found in the apartment (Florio: A. 1271-84, 1300). He explained that biowash is used as an industrial strength cleaner to clean biological fluids (Florio: A. 1289). Officer Abdul Miah went to the apartment on June 24, 2006, and recovered a fan, mop head, bucket, towels, gloves, bed sheets, biowash, and other items, including pieces of floor tile (Miah: A. 1706-16). Kecia Harris, a criminalist with the medical examiner’s office, examined the evidence from the apartment, and found that the two gloves contained DNA which matched appellant (Harris: A. 1723, 1730). What was believed to be blood on appellant’s jeans (at the time of arrest) did not match the deceased’s DNA (Harris: A. 1964-66). DNA testing on Cham revealed none having come from appellant (Harris: A. 1971). James Gill, Deputy Chief Medical Examiner, conducted an autopsy on Cham, and discovered that, although he had some bruising, Cham had died of strangulation (Gill: A. 1974-75, 1977, 1994). He did not discover a bite mark on the body in his examination, but thought that a mark on the torso could be consistent with such a wound (Gill: A. 2014, 2024-25). 12 Gary Rose’s Testimony Gary Rose had a criminal record including larceny, gambling, and weapon possession, and drug possession and sales (Rose: A. 1821-24, 1916). The 54-year-old had been a drug addict since the 1970’s (Rose: 1820, 1912-18, 1931-32). At about 9 p.m. on June 21, 2006, Rose was at home in the three- bedroom apartment he shared with appellant, and saw Matharr Cham there (Rose: A. 1824, 1832). Rose knew that Cham had kept a gun in the apartment closet (Rose: A. 1943). Rose used to buy crack cocaine from Cham (Rose: A. 1884). Cham attempted to enter Rose’s bedroom (Rose: A. 1834). Rose told Cham he was not supposed to be there, and then saw Walter Cates, Jr., and appellant, who both grabbed Cham, with appellant pulling him out of the bedroom in a chokehold (Rose: A. 1824, 1835-36). The two then held down and punched Cham (Rose: A. 1825). Lee Carr suddenly appeared, and he also hit Cham (Rose A. 1828, 1837-38). Raheen Davis appeared, and sat in a chair (Rose: A. 1838-39). Carr ordered Rose to go into his bedroom, and said, “[G]et the fuck back in the room then, and nobody knows nothing” (Rose: A. 1840-41). 13 Rose went back in the room, and shortly thereafter used the bathroom (Rose: A. 1840). He went back in his bedroom and “dozed off,” though he did not sleep well, because it was “like a nightmare” (Rose: A. 1841). Rose then looked out into the hallway, and saw Lee Carr holding a cord (Rose: A. 1841). “It [l]ooked like he had it tied around [Cham], but I don’t know where,” Rose stated (Rose: A. 1842). He also saw Raheen Davis holding the cord, while sitting in a chair (Rose: A. 1842). Rose said that Carr was “fitting it to a size or something. . . . I don’t know what the hell he was doing with it” (Rose: A. 1842). Rose saw Tyshon Cates there, and Tyshon Cates punched Cham a few times (Rose: A. 1843-44). Appellant, Cates, Jr., and Davis were present in the room at the time (Rose: A. 1843). 3 Later, Rose saw Cham dead in the bathroom (Rose: A. 1845). Davis told him Cham was dead (Rose: A. 1845). Nevertheless, Rose used the bathroom, washed his hands, and left (Rose: A. 1845). In summation, the prosecutor maintained that Carr and Davis were3 responsible for the strangulation with the cord (A. 2462). At the time of death, according to the prosecutor, appellant’s role was that he “didn’t walk away” (A. 2450). 14 About 1 a.m. on June 24, 2006, Rose was taken by police officers from the apartment and brought to the stationhouse (Rose: A. 1849). Initially Rose denied that anybody had been beaten in the apartment, and claimed that he had been out getting drugs at the time (Rose: A. 1861, 1863).4 Jerome Mitchell’s Testimony On June 21, 2006, at about 9:30 p.m., Jerome Mitchell received a call from his friend Tyshon Cates (Mitchell: A. 1328, 1333). Mitchell had prior convictions for selling and possessing drugs, and had been a drug dealer for several years (Mitchell: A. 1331-32). On the phone, Tyshon Cates asked him to come over to the Edenwald Houses to help him (Mitchell: A. 1333-34). Mitchell drove in his car, and met Tyshon Cates, Walter Cates, Jr., Lee Carr, and Raheen Davis at the apartment (Mitchell: A. 1345-46). Tyshon Cates asked for help removing the body of Matharr Cham (Mitchell: A. 1350). Cham was in the bathtub, with a plastic bag over his head, and a white extension cord around his neck Rose was questioned about his suffering from migraines and his4 failure to timely show up to testify in the present case (A. 1902-10). 15 and hands (Mitchell: A. 1350-52). Appellant appeared at the bathroom door (Mitchell: A. 1353). After a discussion about what to do with the body, appellant and Lee Carr dragged the body into the living room, took off the clothing, and put the body in a plastic bag (Mitchell: A. 1354-56). Appellant “joke[d]” that during the struggle, Cham had bit him on the finger, and that appellant had “bit him back” on the chest (Mitchell: A. 1356). Tyshon Cates went downstairs and called the others when he saw no police there (Mitchell: A. 1355-56). Appellant carried a television set downstairs to pretend that they were moving (Mitchell: A. 1356). Appellant and Lee Carr then brought the body down and put Cham’s body in the trunk (Mitchell: A. 1356). Mitchell carried the body in the trunk to a nearby dumpster, with Raheen Davis and Walter Cates, Jr., accompanying him in Mitchell’s car (Mitchell: A. 1357). After initially dropping Cham on the ground, Davis and Cates, Jr., were able to place him inside of the dumpster (Mitchell: A. 1357). At the suggestion of Walter Cates, Jr., Mitchell went to a nearby gas station, and purchased five dollars worth of gasoline, placing it in a gas can 16 he had in the car (Mitchell: A. 1357, 1373). Upon Mitchell’s return, Walter Cates, Jr., poured gasoline into the dumpster, and lit it on fire (Mitchell: A. 1357). Mitchell drove Walter Cates, Jr, and Raheen Davis home (Mitchell: A. 1372). 5 Mitchell explained that appellant at no time stated he had participated in the killing of Cham, and that appellant was not present for the discussion about what to do with the body, nor when they placed the body in the dumpster (Mitchell: A. 1526, 1537). Mitchell pleaded guilty to hindering prosecution, a felony, and was facing up to seven years in prison (Mitchell: A. 1374-75). However, based on his cooperation in this case, he was promised to be able to withdraw his plea, and to plead guilty to a misdemeanor, facing probation and no imprisonment (Mitchell: A. 1375). The Defense Case Appellant, Walter Cates, Sr., testified that he had lived in the apartment at issue with roommate Gary Rose (Cates, Sr.: A. 2056-59). He Detective Michael J. DePaolis viewed video images of three men5 throwing something into the dumpster, and video images of Mitchell buying gasoline at a local gas station (DePaolis: A. 1558, 1565-70). 17 used to smoke crack cocaine with Rose, and sometimes with a woman he referred to as Thelma (Cates, Sr.: A. 2063-64). He knew Cham, because he bought drugs from him occasionally (Cates, Sr.: A. 2065). On June 21, 2006, appellant was out getting small items from stores, and returned home to hear gunshots (Cates, Sr.: A. 2065). He had a criminal record which included larceny and assault (Cates, Sr.: A. 2099- 100). Appellant admitted smoking crack cocaine at some time that day (Cates, Sr.: A. 2114). Later, he went downstairs to check on his grandchildren (Cates, Sr.: A. 2066). Returning to the apartment he saw Rose and Cham in Rose’s bedroom (Cates. Sr.: A. 2067). A little later, at about 7:30 to 8:00 p.m., appellant left the apartment, to spend a couple hours at his girlfriend Yvonne Smith’s house (Cates, Sr.: A. 2074, 2077). Inside the apartment at the time he left were Gary Rose, Matharr Cham, Walter Cates, Jr., and Raheen Davis (Cates, Sr.: A. 2068, 2071-74). Before he left, appellant heard an argument and what he thought was a slap (Cates, Sr.: A. 2072-75). Returning home, he discovered Cham’s dead body on the living room floor (Cates, Sr.: A. 2077). Cham was not wearing clothes, and had no cord 18 around the neck, and appellant saw no blood on his body (Cates, Sr.: A. 2141-42). Appellant admitted to assisting placing the body in bags, and carrying the body downstairs (Cates, Sr.: A. 2079-80). At that time Lee Carr was also present, in addition to the others, and Carr assisted in removing the body to Jerome Mitchell’s car (Cates, Sr.: A. 2079-82). Mitchell drove off with the body in the trunk (Cates, Sr.: A. 2081). Appellant left and went back to his girlfriend Smith’s house (Cates, Sr.: A. 2084). Tyshon Cates was not there that day (Cates, Sr.: A. 2079, 2142). The police arrived a few days later, and arrested him in the apartment (Cates, Sr.: A. 2083-84). There was no operating fan and no puddles of liquid in the apartment when the police entered (Cates, Sr.: A. 2163-64). The bottle they claimed was “biowash” was a housing authority pine cleaner (Cates, Sr.: A. 2165-66). Appellant admitted he used the gloves (found with his DNA) for housecleaning (Cates, Sr.: A. 2167). 19 The Verdict and the Sentence The jury was charged on murder in the second degree, manslaughter in the first degree, and removal of a body (A. 2505-12). The jury found appellant guilty of murder in the second degree and removal of a body (A. 2613). The removal of a body count was dismissed at sentencing, at which the court sentenced appellant for murder to a prison term of 25 years to life (A. 2681). The Appeal to the Appellate Division On appeal, appellant argued that the court failed to charge the lesser included offense of assault in the third degree, and that counsel was ineffective. The Appellate Division affirmed, and this Court initially denied leave. People v. Cates, Sr., 92 A.D.3d 553 (1 Dep’t), lv. denied, 18 N.Y.3dst 20 992 (1992), lv granted on reconsideration, __ N.Y.3d __ (June 25, 2014) (Graffeo, J.) (A. 2-5).6 In codefendant Lee Carr’s appeal, the Appellate Division held: 6 Defendant’s right to counsel and right to be present at material stages of the trial were not violated when the court had an ex parte, in camera conversation with the People’s main witness, regarding the witness’s assertion that he was too ill to testify that day. This inquiry was not a hearing, nor part of the trial, and it did not involve the determination of any issue requiring input from defendant or his counsel (citations omitted). The court placed sufficient information on the record about what transpired at the conference, and defendant was not prejudiced by the fact that the conference was unrecorded. There was no impairment of defendant’s ability to cross examine this witness about all matters relating to his credibility, including drug abuse. People v. Carr, 111 A.D.3d 472, 472 (1 Dep’t 2013), lv. granted, 22 N.Y.3dst 1155 (Mar. 31, 2014) (Graffeo, J.). 21 ARGUMENT APPELLANT WAS DENIED HIS RIGHT TO COUNSEL AT MATERIAL STAGES OF TRIAL WHERE THE COURT, OVER DEFENSE OBJECTI ON, EXCLUDED DEFENSE COUNSEL FROM TWO OFF-THE-RECORD IN CAMERA EXAMINATIONS OF THE MAIN PROSECUTION WITNESS ADDRESSING THE WITNESS’S MENTAL AND MEDICAL CAPACITY TO TESTIFY. U.S. CONST. AMEND. VI, XIV; N.Y. CONST. ART. I, § 6. The main prosecution witness, Gary Rose, whose testimony was central to the People’s case, had two conversations with the trial court, examinations without the presence of defense counsel, and without a record created, regarding his mental and physical capacity to testify at appellant’s trial. No explanation exists in the record for the absence of defense counsel. There was no medical necessity presented requiring having such conversations prior to the arrival of counsel and the court reporter. Nor was there any discussion of the witness being afraid of appellant or other members of the defense with regard to defense counsel’s presence. To the contrary, the court apparently believed it had the absolute right to speak with the witness in the absence of defense counsel. This belief is contrary to the longstanding and firmly stated law of the Court of Appeals, that the 22 exclusion of defense counsel from court proceedings is “undesirable” and should be “rare,” People v. Contreras, 12 N.Y.3d 268, 273 (2009), and that such an exclusion should occur in “only the most unusual and exceptional circumstances.” People v. Frost, 100 N.Y.2d 129, 132 134 (2003). Because no reason exists here for the exclusion of counsel, and counsel appropriately objected when he learned of the proceedings, the court violated appellant’s right to counsel and due process of law, and there must be reversal and a new trial. U.S. Const. amend. VI, XIV; N.Y. Const. art. I, § 6. The “unusual and exceptional circumstances test” for the exclusion of defense counsel has evolved over time in this Court. In People v. Darby, 75 N.Y.2d 449, 452 (1990), the trial court conducted a discussion with four jurors about possible taint from another juror regarding their ability to lawfully continue to sit as jurors. Counsel was denied the right to be present for the court’s conversations with the four jurors. Id. at 452-53. This Court reversed, holding that the defendant was denied the right to counsel. Id. “The fundamental unfairness to defendant by the exclusion of counsel from this relevant inquiry is evident from the inherently speculative nature of the impact on those four jurors,” the Court wrote. Id. at 453. 23 In People v. Ortega, 78 N.Y.2d 1101, 1102 (1991), this Court addressed a case where the court spoke to a witness. In that case, the conversation took place without counsel’s presence or knowledge, and involved the court attempting to persuade the witness to voluntarily disclose the identity of an informant. Id. The court was attempting to avoid an issue pursuant to People v. Goggins, 34 N.Y.2d 163, 168-69 (1974), where disclosure of the informant’s identity would be required because potential testimony could be material to the case. Id. The People argued counsel was not required to be there because no Goggins issue was discussed at the conversation between the court and the witness. Id. at 1102-03. This Court reversed, because “there is no record . . . to show what was said in chambers or whether it contributed to the court’s decision that disclosure was not required. It is possible that [the officer] . . . stated an unrebutted view of the facts which influenced the trial court in reaching its subsequent [Goggins] decision.” Id. at 1103. In Darby and Ortega, no compelling reason existed, based on facts in the record, to exclude counsel. In contrast, in People v. Frost, 100 N.Y.2d 129, 134 (2003), the Court of Appeals clarified a bright-line rule regarding when counsel has to be present, and when counsel can be excluded: record- 24 based facts establishing “unusual and exceptional circumstances.” In that case, counsel was excused during ex parte hearings because witnesses who testified at the hearing in the absence of defense counsel “were in fear for their safety.” Id. Indeed, not only were the witnesses in fear, but that conclusion was based on “ample evidence” that both the Supreme Court and Appellate Division carefully examined. Id. Thus, under the “unusual and exceptional circumstances” test, counsel was legitimately excluded. Id. Here, there was no reason offered or given for counsel’s exclusion. There were no facts establishing unusual and exceptional circumstances, and it was simply improper for the court to speak with the witness absent counsel. Counsel must be present because of his or her unique role. In People v. Darby, 75 N.Y.2d at 454, this Court linked “the unique, indispensable presence of a least the ‘single minded-counsel for the accused’” - - and not merely the court - - to the necessity to “safeguard the fundamental fairness to defendant.” That is because the court could not possibly recognize, and should not be burdened with the need to recognize, facts and evidence that could be used for impeachment, or could be used for further investigation and discovery that could assist the defense case. Indeed, as this Court has recognized, “omissions, contrasts, and even contradictions, vital perhaps, 25 for discrediting a witness, are certainly not as apparent to the impartial presiding judge as to single minded counsel for the accused, who, by virtue of his role is in a far better position to appraise the value of a witness’ pretrial statements for impeachment purposes.” People v. Rosario, 9 N.Y.2d 286, 290 (1961); see People v. Combest, 4 N.Y.3d 341, 349 n. 4 (2005); People v. Darby, 75 N.Y.2d at 454. Of course, the defendant should usually be present, but in circumstances where defendant cannot be present, or should not be present, counsel has the ability to safeguard defendant’s interests. See Kentucky v. Stincer, 482 U.S. 730, 740 (1987); People v. Morales, 80 N.Y.2d 450, 455 (1992) (both discussing necessity of counsel at preliminary examination of potential competency of witnesses to testify). Indeed, in New York right-to- be-present cases regarding defendant’s personal presence, this Court has acknowledged that the “[p]resence of counsel alone” could ameliorate any harm in the proceedings from defendant’s personal absence. People v. Sprowal, 84 N.Y.2d 113, 117 (1994); see also People v. Velasco, 77 N.Y.2d 469, 473 (1991); People v. Dokes, 79 N.Y.2d 656, 661-62 (1992) (discussing defendant’s personal right to be present). 26 It is not the job of the court to represent the defendant, and to pursue facts and further evidence to advance the defense case. Only counsel for the accused represents the defendant. There is no substitute for counsel when it comes to observation and listening skills, and perhaps participation, in the examination of a witness. Further, the absence of counsel and the absence of a record of proceedings for this Court to review, demands reversal. See People v. Lovett, 192 A.D.2d 326, 326 (1 Dep’t 1977) (no reversal where appellatest court and defense could review transcripts of proceeding of court’s discussion with witness); People v. Ortega, 78 N.Y.2d at 1103 (reversing where no record of court’s private conference with witness). Without any way to know exactly what was said, this Court should not affirm and, with no way now to obtain a record, reversal is demanded. In People v. Contreras, 12 N.Y.3d at 271, the Court looked at the denial of counsel with regard to whether certain paperwork about the complainant should be turned over to the defense. This Court applied its test of unusual and exceptional circumstances, and determined that necessity demanded that documents be examined ex parte before being turned over to defense counsel. Id. at 273. Notably in Contreras the court had the conversation at issue transcribed by 27 the court reporter, so that a record existed and this Court knew exactly what was at issue. Id. Here, counsel was flagrantly excluded from two examinations with witness Gary Rose. Rose apparently came late to court one day, and then spoke with the court without a record being created. The next week Rose came to court and then, over specific objections of the defense, was examined about his mental and physical capacity to testify at appellant’s trial, again without a record being created. When questioned about the proceedings, the court gave minimal information, and told counsel that it had the absolute right to examine witnesses without any defense presence, including counsel. Rose was a 54-year-old lifelong drug addict. His testimony was central to the People’s case. He testified that he was present in the apartment before and after the killing, and that he observed appellant and codefendants participating in a brutal assault on the decedent. Indeed, he observed codefendants holding a cord that was used to strangle and kill the decedent. No other witness testified to being there that day before, during and after the crime. No other witness could place appellant as being part of 28 the assault that ultimately resulted in murder. The core of the evidence that established appellant as being guilty of murder came from Rose’s testimony. The ex parte proceedings involving this critical witness were material. The discussion between Rose and the court involved his testimonial capacity. Further, his reliability and credibility were directly impacted by questions directed to the issue of his not appearing at court when he was required to do so. His extensive drug use was a very possible reason that he did not timely appear at the courthouse and was directly relevant to his credibility. The court’s questions and Rose’s explanations about his behavior in not appearing in court on time, and the possibility of drug abuse, were substantive, material facts. The underlying question throughout was whether Rose was unwilling to testify because he was going to testify dishonestly. Rose’s medical and mental capacity were intertwined with his veracity and reliability, and ability to accurately and credibly testify. That the court repeated its conversation with counsel, and permitted counsel the ability to fully question Rose at trial during cross-examination, does not undermine the claim. First, there is no record, so we can never be sure exactly what was said by Rose and by the court. Second, as stated 29 above, it simply was not the court’s role to protect the defense, and to further a defense case. The court explained its interest - in moving along the trial. The court wanted witness Rose to show up and testify, or not to testify if there was reason to not continue with Rose being a witness. The court had no interest in the defense case, and should not have had such an interest. Most importantly, the court did not have facts and other information from the defendant himself, that counsel possessed. This Court should also note the danger to the fairness of the case here if the court believed Rose was not completely honest at trial, based on what it had learned in its examination. There is no mechanism in the law for the court to do anything if that happened. If Rose was not completely forthright on the stand, the court would be placed in a very difficult position, a position no trial court should find itself. Because Rose was central to the prosecution’s case, and the discussions between Rose and the court were material to that testimony, any error cannot be harmless. The denial of the right to counsel is normally not subject to harmless error analysis, United States v. Cronic, 466 U.S. 648, 659 n. 25 (1984), and should not be harmless here. Without knowledge of where the defense could have gone with additional facts in creating a 30 stronger defense, this Court should not apply harmless error. See People v. Carracedo, 89 N.Y.2d 1059, 1062 (1997) (potential for prejudice can preclude harmless error analysis). This was hardly the case of a pretrial denial of counsel, as in People v. Wardlaw, 6 N.Y.3d 556, 558-59 (2006), where any error could have been cured by the time of trial. This instead was a mid-trial denial of counsel, demanding reversal where the denial impacted the testimony of a key People’s witness. Even applying harmless error analysis, as in Wardlaw, the denial of the right to counsel at the discussion with a key witness at trial was not harmless beyond a reasonable doubt. People v. Crimmins, 36 N.Y.2d 230, 241-42 (1975). See Chapman v. California, 386 U.S. 18, 24 (1967). Under constitutional harmless error analysis, the Court must decide if “the quantum and nature of the proof” is “overwhelming.” People v. Crimmins, 36 N.Y.2d at 240-41. “[U]nless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error,” and reversal must ensue. Id. at 241. Examining the totality of the People’s case, without Rose’s testimony, see Wardlaw, 6 N.Y.3d at 560, the proof was far from overwhelming. No 31 one witnessed the killing. While Jerome Mitchell was later present for the removal of the body from the apartment, no one actually saw what happened at the time of the killing. Only Rose was able to provide critical testimony placing appellant and the codefendants as participating in the attack on the decedent. Thus, the evidence was far from overwhelming, and harmless error analysis is wholly inappropriate. The denial of the right to counsel is a fundamental trial error, a mode of proceedings error, demanding reversal despite any claimed lack of preservation. See People v. Ahmed, 66 N.Y.2d 307, 310-11 (1985); People v. McLean, 15 N.Y.3d 117, 121 (2010); People v. Sanders, 56 N.Y.2d 51, 66 (1982) (right to counsel claims not requiring preservation). In any event, the claim was fully preserved. C.P.L. § 470.05(2). As soon as counsel learned of the denial of counsel at the meetings between Rose and the court, counsel objected. Counsel demanded a transcript of the proceedings, and fully argued the same claim presented in this brief. Any shortcoming in preservation was cured by counsel’s statements regarding not having known of the first examination of Rose by the court, and having timely objected prior to the court speaking with witness Rose the second time. Counsel also fully articulated his request for transcripts of all 32 discussions between the court and Rose. The court was fully aware of what counsel wanted, to be present at any discussion with witness Rose. See People v. Alvarez, 20 N.Y.3d 75, 81 (2012). * * * Under this Court’s “unusual and exceptional circumstances test,” reversal is demanded because the court below provided no rational explanation for its two unrecorded conversations with key witness Gary Rose, in the absence of defense counsel. To the contrary, despite Rose having no fear of the defense, nor urgent need to speak with the court prior to counsel being able to attend, or any other rational reason, the court insisted it had the right to conduct unrecorded examinations of this key witness without the presence of the defense. This was wrong, and reversal is demanded. There is an important public policy in having counsel present for the totality of a defendant’s trial, and for insisting that this Court and all appellate courts have the opportunity to review the record of all significant conversations between witnesses and the court. Without a record and counsel’s present, it is impossible to review the court’s decision to exclude counsel and to assess whether or not exceptional circumstances existed. 33