The People, Respondent,v.Walter Cates, Sr., Appellant.

Brief

N.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. REPLY BRIEF 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 December 4, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 i TABLE OF AUTHORITIES Cases People v. Contreras, 12 N.Y.3d 268 (2009) .. . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Darby, 75 N.Y.2d 449 (1990) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Frost, 100 N.Y.2d 129 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Ortega, 78 N.Y.2d 1101 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Rosario, 9 N.Y.2d 286 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Wardlaw, 6 N.Y.3d 556 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 ii 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 Appellant in this brief replies to the People’s respondent’s brief on appeal to this Court. 1 ARGUMENT 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 E X A M I N A T I O N S O F T H E M A I N PROSECUTION WITNESS ADDRESSING THE WITNESS’S MENTAL AND MEDICAL CAPACITY TO TESTIFY. U.S. CONST. AMEND. VI, XIV; N.Y. CONST. ART. I, § 6. A trial court should not have conversations with a People’s main trial witness without the presence of defense counsel unless there is a good reason. 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. Rose was a drug addict present in the apartment during the murder, and the defense believed his testimony implicating appellant and others would be untruthful and inaccurate, and that his efforts to avoid testifying were material. The Court of Appeals has stated that the 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 2 exceptional circumstances.” People v. Frost, 100 N.Y.2d 129, 132, 134 (2003). Despite this Court’s assertions, the People here claim that trial courts have the absolute right to speak with witnesses, as here, without counsel present, to assess the healthcare needs of witnesses, and the possibility of their future appearance at trial, because such conversations are not material. The People further make arguments about the right of defendants to be present (Respondent’s Brief at 22-23), an issue not raised in this appeal, where the sole claim is that counsel should have been present. Counsel should have been present because the discussions, despite the People’s repeated assertions otherwise, were absolutely material to the People’s case. See People v. Ortega, 78 N.Y.2d 1101, 1102-03 (1991); People v. Darby, 75 N.Y.2d 449, 452-53 (1990). The discussion between Rose and the court involved his testimonial capacity. Rose’s reliability and credibility as a witness 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. 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 3 whether Rose was unwilling to testify because he was going to testify dishonestly. The defense position was that Rose’s testimony was based on purposeful lies, or based on mistaken perception and confused thoughts which had resulted from drug abuse. Here there is no record of the conversations for this Court’s review. The lack of transcription and inclusion within the record should weigh heavily towards reversal. 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, and should not be harmless here. Even looking to harmless error, People v. Wardlaw, 6 N.Y.3d 556, 558-59 (2006), the denial of the right to counsel at a substantive discussion with a key prosecution witness at trial could not be harmless beyond a reasonable doubt. Despite the People’s view otherwise (Respondent’s Brief at 29-32), under constitutional harmless error analysis, unless the proof of the defendant’s guilt without reference to the “tainted” evidence is overwhelming, there is no occasion for consideration of any doctrine of harmless error, and reversal must ensue. 4 Examining the totality of the People’s case without Rose’s testimony, as is required by the holding of this Court in Wardlaw, 6 N.Y.3d 556, 558-60 (2006), the proof was far from overwhelming. “[T]he remedy to which a defendant is entitled ordinarily depends on the impact, if any, the tainted proceeding had on the case as a whole.” Id. at 559. No 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 murder. Only Rose was able to provide critical testimony placing appellant and the codefendants as participating in the attack on the decedent. Thus, the evidence without Rose’s testimony was far from overwhelming, and harmless error analysis is wholly inappropriate. Certainly there could be circumstances where the healthcare of a witness needs to be addressed in the absence of defense counsel, most obviously where a witness has immediate healthcare needs and counsel is not available. Also, of course, there could be expressed privacy concerns of a witness, which is not the case here. The People also point to dictum in a single Appellate Division case (Respondent’s Brief at 24-25), which provides few facts and suggests there was good reason for excluding counsel. But here there was no reason whatsoever for what occurred. 5 Moreover, it would be unfair for this Court to begin to decide how counsel could best use evidence obtained from substantive conversations with witnesses. Despite the People’s arguments throughout their brief, the District Attorney’s Office and Supreme Court justices are not in a position to assess what to do with defense evidence, which of course includes impeachment evidence, nor to best understand the implications of such conversations on further investigation and discovery based on what is learned. To the contrary, this Court has always maintained that “single minded counsel for the accused” is the only one in the unique position to decide how best to defend a criminal defendant. People v. Rosario, 9 N.Y.2d 286, 290 (1961). All appellant asks here is that counsel be permitted to do his or her job. But to exclude counsel, without an unusual or exceptional circumstance - - a good reason - - is to undercut and disable the whole trial process. There is no need for this Court to carve out an exception here to the right to counsel. Appellant was denied the right to counsel, and the witness’s testimony and conversation with the court were material and central to the People’s evidence, such that reversal is demanded. 6 CONCLUSION FOR THE REASONS STATED ABOVE, AND FOR THE REASONS I N O U R M A I N B R I E F , APPELLANT’S CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, ROBERT S. DEAN CENTER FOR APPELLATE LITIGATION Attorney for Defendant-Appellant BRUCE D. AUSTERN Of Counsel December 4, 2014 7