The People, Respondent,v.Austin Cornelius, Appellant.

Brief

N.Y.February 6, 2013

To be argued by: MARGARET E. KNIGHT, ESQ. (Counsel requests 20 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- AUSTIN CORNELIUS, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant BY: MARGARET E. KNIGHT, ESQ. Senior Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Tel. No.: (212) 402-4100 Fax No.: (212) 402-4199 September 18, 2012 - i - TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT POINT I AUSTIN CORNELIUS’ CONFRONTATION CLAUSE CLAIM IS FULLY PRESERVED FOR THIS COURT’S REVIEW, THE TRESPASS NOTICES ARE TESTIMONIAL STATEMENTS UNDER THE CONFRONTATION CLAUSE, MR. CORNELIUS DID NOT OPEN THE DOOR TO ADMISSION OF THE STATEMENTS, AND THE ERRONEOUS ADMISSION OF THE TRESPASS NOTICES WAS NOT HARMLESS BEYOND A REASONABLE DOUBT (replying to Respondent’s Brief at 10-41). . . . . . 1 A. Austin Cornelius’ Claim Is Fully Preserved for Appellate Review Because Defense Counsel Explicitly Invoked the Confrontation Clause When Objecting to the Admission of the Trespass Notices, Cited Relevant Case Law Addressing this Issue, and Did Not Limit the Objection to Only a Portion of the Notices. . . . . . . . . . . . . . . . . . 1 B. The Admission of the Duane Reade Trespass Notices, Which Contained Factual Allegations by Absent Witnesses about What They Previously Said to Austin Cornelius and their Observations of his Alleged Criminal Conduct, Violated the Confrontation Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. Where Defense Counsel’s Questioning about the Notices Did Not Create an Incorrect, Incomplete, or Misleading Impression, the Door Was Not Opened to the Redacted Material. . . . . . . . . . . . 14 D. Where the Trespass Notices Were Introduced to Prove Austin Cornelius’ Knowledge of Unlawful Entry and Intent to Commit a Crime, And Where his Actions Were Otherwise Easily Susceptible to Innocent Interpretation, their Erroneous Admission Was Not Harmless Beyond a Reasonable Doubt. . . . . . 18 - ii - POINT II WHERE THE ALLEGATIONS THAT AUSTIN CORNELIUS HAD COMMITTED MULTIPLE PRIOR THEFTS AND AN ASSAULT SPECIFICALLY IN OTHER DUANE READE STORES WERE UNNECESSARY TO ASSESS HIS CREDIBILITY, THE COMBINED WEIGHT OF THE SANDOVAL AND MOLINEUX WAS UNNECESSARILY PREJUDICIAL AND REQUIRES REVERSAL OF HIS CONVICTION (replying to Respondent’s Brief at 42-61). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 - iii - TABLE OF AUTHORITIES CASES PAGE Chapman v. California, 386 U.S. 18 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Cox v. Bradt, 10 Civ. 9175(JLC), 2012 WL 2282508 (S.D.N.Y. June 15, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 Crawford v. Washington, 541 U.S. 36 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 Davis v. Alaska, 415 U.S. 308 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Liner v. Artus, No. 08 Civ. 5886(GEL), 2008 WL 5114485 (S.D.N.Y. Dec. 5, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) . . . . . . . . . . . . . . . . . . 8, 23 People v. Bowles, 132 A.D.2d 467 (1st Dep’t 1987) . . . . . . . . . . . . . . . . . . . . . 26 People v. Brown, 13 N.Y.3d 332 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Caban, 5 N.Y.3d 143 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Cox, 63 A.D.3d 626 (1st Dep’t 2009) . . . . . . . . . . . . . . . . . . . . . . . . 3, 12 People v. Douglas, 4 N.Y.3d 777 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 People v. Everson, 100 N.Y.2d 609 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Freycinet, 11 N.Y.3d 38 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 People v. Goldstein, 6 N.Y.3d 119 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 22 People v. Gonzalez, 221 A.D.2d 203 (1st Dep’t 1995) . . . . . . . . . . . . . . . . . . . . 24 - iv - People v. Hall, 18 N.Y.3d 122 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Hardy, 4 N.Y.3d 192 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 22 People v. Kello, 96 N.Y.2d 740 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Liner, 33 A.D.3d 479 (1st Dep’t 2006) . . . . . . . . . . . . . . . . . . . . . . . 1, 12 People v. Liner, 9 N.Y.3d 856 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3, 5 People v. Massie, 2 N.Y.3d 179 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 People v. Mateo, 2 N.Y.3d 383 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Melendez, 55 N.Y.2d 445 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Rawlins, 10 N.Y.3d 136 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . 8-10, 21 People v. Reid, 19 N.Y.3d 382 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Rojas, 97 N.Y.2d 32 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Salko, 47 N.Y.2d 230 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Sandoval, 34 N.Y.2d 371 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Smith, 18 N.Y.3d 588 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 People v. Tevaha, 84 N.Y.2d 879 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reed v. McCord, 160 N.Y. 330 (1899) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 United States v. Bellomo, 176 F.3d 580 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . 13 United States v. Hodge, 295 Fed.Appx. 597 (4th Cir. 2008) . . . . . . . . . . . . . . . . 13 United States v. Moran, 759 F.2d 777 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . 12 - v - United States v. Tolliver, 454 F.3d 660 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 11 Williams v. Illinois, 132 S. Ct. 2221 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 23 - 1 - ARGUMENT POINT I AUSTIN CORNELIUS’ CONFRONTATION CLAUSE CLAIM IS FULLY PRESERVED FOR THIS COURT’S REVIEW, THE TRESPASS NOTICES ARE TESTIMONIAL STATEMENTS UNDER THE CONFRONTATION CLAUSE, MR. CORNELIUS DID NOT OPEN THE DOOR TO ADMISSION OF THE STATEMENTS, AND THE ERRONEOUS ADMISSION OF THE TRESPASS NOTICES WAS NOT HARMLESS BEYOND A REASONABLE DOUBT (replying to Respondent’s Brief at 10-41). A. Austin Cornelius’ Claim Is Fully Preserved for Appellate Review Because Defense Counsel Explicitly Invoked the Confrontation Clause When Objecting to the Admission of the Trespass Notices, Cited Relevant Case Law Addressing this Issue, and Did Not Limit the Objection to Only a Portion of the Notices. Respondent argues that Austin Cornelius’ constitutional challenge to the admission of the trespass notices is not preserved for this Court’s review because defense counsel only vaguely objected to the admission of the redacted notices and then abandoned his objection after the trial court claimed that his reading of People v. Liner, 33 A.D.3d 479 (1st Dep’t 2006), aff’d, 9 N.Y.3d 856 (2007), was incorrect. Respondent’s Court of Appeals Brief (hereinafter “Resp. Br.”) at 11, 17-18, 32-33. As indicated by Respondent’s failure to even make this claim before the Appellate Division, its preservation argument is plainly incorrect. As an initial matter, Respondent’s suggestion that defense counsel lodged no objection after the court disputed his characterization of Liner is false. Prior to 1For convenience, appellant’s appendix will be cited as “A.” followed by the page number; the transcript of the pre-trial proceedings will be cited as “H.” followed by the page number; the transcript of the voir dire proceedings will be cited as “VD.” followed by the page number; and the transcript of the trial will be cited as “T.” followed by the page number - 2 - the trial, defense counsel noted that there had been an off-the-record discussion, and that there were issues he wanted to “memorialize on the record.” A.40; VD.3.1 Specifically, counsel noted: In addition, there are two cases I had mentioned at the bench conference. One was People of the State of New York v. Joshua Liner, L-I-N-E-R. This is a memorandum decision cited at 9 N.Y.3d 856 of – it’s a 2007 case by the Court of Appeals. Basically, what it says, it says that after a jury trial, the defendant was convicted of burglary in the third degree, petty [sic] larceny and two counts of criminal possession of a weapon in the third degree for stealing merchandise at a Duane Reade store. At the trial, People introduced two trespass notices revoking defendant’s right to enter Duane Reade stores. Because the defendant failed to assert at the time of the trial that the admission of the notices violated his right of confrontation, the issue [wa]s not preserved for review. I am mentioning this because I am, for the record, asserting that the admission of those notices will violate my client’s right to confrontation. I would like to preserve that for the record and also ask the Court not to allow these trespass notices in because of the reasoning of People v. Liner. A.40-41; VD.3-4. The trial court responded that this Court in Liner “didn’t say definitively that it violate[d] his rights.” A.41; VD.4. Defense counsel agreed that this was true, and the trial court denied his application. Id. However, counsel - 3 - immediately clarified, “The Court said because the prior defense attorney did not [sic] fail to assert at that time, they weren’t going to address it . . . I am asserting it.” Id. See also Liner, 9 N.Y.3d at 856-57 (“Because defendant failed to assert at the time of the trial that the admission of the notices violated his right of confrontation, the issue is not preserved for our review.”). The prosecutor then noted that the First Department had recently held in People v. Cox, 63 A.D.3d 626 (1st Dep’t 2009), that “the trespass notices did not violate defendant’s confrontation right.” A.41; VD.4. Defense counsel countered that Cox was an Appellate Division case, whereas Liner was a Court of Appeals case. Thus, Respondent misrepresents the record when it claims that defense counsel made a “one-sentence argument,” Resp. Br. at 17, and that after “the trial court pointed out to defense counsel that Liner did not support his claim, defense counsel made no additional arguments.” Resp. Br. at 18. Rather, when the court pointed out that Liner had not been decided on the merits, counsel agreed with the court on that limited point, noted that the reason was because the confrontation clause claim in Liner was unpreserved, and pointedly remarked that he was asserting just such a claim on Mr. Cornelius’ behalf. Therefore, Respondent’s claim that counsel did not raise “a serious argument that his confrontation rights had been violated” should be rejected as frivolous. Resp. Br. at 18. Counsel cited one of the two New York cases that had addressed the issue (the prosecutor cited - 4 - the other), and he made a record to ensure that, unlike in Liner, the confrontation clause claim was preserved. Equally meritless is Respondent’s claim that the argument was unpreserved because counsel did not renew his objection “when the trial court ruled that defense counsel had opened the door to the admission of the bottom parts of the notices.” Resp. Br. at 18, 32-33. Neither counsel’s objection nor the record discussion was limited to only the non-redacted portions of the documents. Moreover, Respondent’s entire argument misleadingly conflates the top and bottom halves of the trespass notices with the information that was redacted from the trespass notices. Specifically, it rests on the assumption that defense counsel’s objection was to the unredacted top halves of the trespass notices (which contained language about what Mr. Cornelius was told) but not to the redacted bottom halves of the trespass notices (which contained language about what the absent witnesses observed). See, e.g., Resp. Br. at 33 (“court did not permit the People to introduce the bottom portions of the 2004 trespass notices until defense counsel opened the door”). However, contrary to the assumption upon which Respondent bases its preservation argument, the bottom halves of the trespass notices introduced as People’s Trial Exhibit Nos. 5 & 6 were not fully redacted. In fact, even before the redactions were removed, the non-redacted portions on the bottom halves of the - 5 - trespass notices contained signed statements from absent and unsworn witnesses that they saw Mr. Cornelius “engaging in illegal conduct” at specific locations. A.196; A.198; People’s Trial Exhibit Nos. 5 & 6 (redacted trespass notices). The initially redacted portions of the trespass notices certainly provided more detail about the underlying conduct and were, thus, highly prejudicial. However, the redacted portions were not qualitatively different than the other non- redacted information contained in the bottom halves of the trespass notices, to which counsel clearly and unambiguously objected prior to trial. Contrary to Respondent’s argument, it is clear that counsel’s initial objection encompassed both portions of the trespass notice. Thus, it is immaterial that counsel did not continue to reassert the nature of his constitutional claim after it had been rejected. Indeed, Respondent did not – and could not – cite to any cases where this Court deemed a timely and specific objection to be abandoned under the circumstances presented here. Finally, the cases cited by Respondent are easily distinguishable and do not support its position. Resp. Br. at 18, 33. Specifically, Respondent relies on cases in which the defense made either a general objection or did not specifically object on constitutional grounds. See Liner, 9 N.Y.3d at 856 (“defendant failed to assert at the time of the trial that the admission of the notices violated his right of confrontation”); People v. Everson, 100 N.Y.2d 609, 610 (2003) (“defense counsel - 6 - made only a general objection”); People v. Kello, 96 N.Y.2d 740, 743 (2001) (“Defendant . . . never based his trial objection . . . on the Confrontation Clause. Rather, the only issue raised before the trial court was the erroneous admission . . . under our State common-law hearsay rule.”); People v. Tevaha, 84 N.Y.2d 879, 881 (1994) (“counsel simply made a general objection when the testimony was proffered”). B. The Admission of the Duane Reade Trespass Notices, Which Contained Factual Allegations by Absent Witnesses about What They Previously Said to Austin Cornelius and their Observations of his Alleged Criminal Conduct, Violated the Confrontation Clause. Respondent argues that the trespass notices are not testimonial under the Confrontation Clause because they were simply prepared for “record-keeping” purposes, Resp Br. at 28, and “while Duane Reade might have entertained the possibility that the notices might someday be relevant to a court case, that was not the primary purpose of their creation.” Resp. Br. at 29. However, Respondent entirely ignores the record that was created by the prosecution witnesses below. Every single witness who was asked what a trespass notice was – both Duane Reade employees and a police officer – testified that the trespass notices were prepared to aid in future arrests and criminal prosecutions. See A.56-57; A.84; A.91; T.31-32 (Police Officer Darryl Ng: “[W]hen an individual is observed shoplifting in a store, the store will issue a trespass notice. Now the person that is - 7 - caught shoplifting will have to sign that notice which prevents them from entering the store ever again . . . [Y]ou’re in violation of trespass, which is an arrestable offense, and other charges if you’re caught stealing in those stores again.”); T.54 (Noriega: “We make them sign a form [sic] they ever come back to Duane Reade, stepping into the Duane Reade ever again, then basically they can be arrested for trespassing because of a previous shoplifting incident”); T.85 (Delacruz: “Can you explain for the jury briefly what a trespass notice is? . . . A trespass notice is a piece of paper that is issued to an individual that has been caught or had been shoplifting in Duane Reade Pharmacy. They lose all rights to reenter any other Duane Reade store, and if they do come back, they could be arrested.”). In the face of this unanimous consensus by its own witnesses, Respondent’s characterization of the purpose of the trespass notices as merely a method to keep shoplifters out of stores “by instilling fear that [they will] face harsh consequences if [they] return[]” falls flat. Resp. Br. at 29. No witness testified that the purpose of the trespass notices was to instill fear. Instead, they all testified that the notices had a dual purpose of revoking the right to enter Duane Reade and allowing for arrest and criminal prosecution in the event of reentry. On their face, the trespass notices reference a Penal Law provision under which future prosecutions may be brought. Officer Darryl Ng confirmed that, when he arrested Mr. Cornelius, he immediately called Duane Reade to inquire if a trespass notice had previously - 8 - been issued. A.57; T.32. In addition, trespass notices are routinely admitted at criminal trials. Thus, their use permeates both the investigation and criminal prosecution of individuals accused of committing burglary or trespass in stores, like Duane Reade, that issue trespass notices. And the witnesses who prepare them are fully aware that they can and will be used as evidence in a criminal prosecution if a person illegally reenters the store. The reason that “[b]usiness and public records are generally admissible absent confrontation” is because they were “created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009). However, if a business record was prepared for use at a subsequent criminal trial, then its status as a business record does not remove it from the purview of the Confrontation Clause. Id. (“Whether or not they qualify as business or official records, the analysts’ statements here – prepared specifically for use at petitioner’s trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.”); People v. Rawlins, 10 N.Y.3d 136, 150 (2008) (“hasten to warn against the convenient danger of relying on a hearsay exception – particularly business records . . . – as a proxy for the statement’s reliability when the real inquiry concerns whether a statement is ‘testimonial’ as that term is now - 9 - understood after Crawford [v. Washington, 541 U.S. 36 (2004)] and Davis [v. Alaska, 415 U.S. 308 (1974)]”). Moreover, unlike other business records cited by Respondent, Resp. Br. at 26, the information contained in the trespass notices is the quintessential type of evidence that should be proved by live testimony – that is, factual accusations of past criminal behavior made by store detectives working to detect and prevent crime, thereby acting in a law enforcement capacity. In this regard, the trespass notices are radically different than, for example, “machine-generated graphs, charts and numerical data” that are prepared by a private laboratory. People v. Brown, 13 N.Y.3d 332, 340 (2009). Indeed, DNA and other scientific reports, produced by laboratories or independent experts, are easily distinguishable because they are rigorous and objective documents that report scientific findings without risk of bias. Id. at 340-41; People v. Freycinet, 11 N.Y.3d 38, 42 (2008) (autopsy report contained “objective account of observable facts” based on “precise recording of [doctor’s] observations and measurements as they occurred”); Rawlins, 10 N.Y.3d at 153 (“A salient characteristic of objective, highly scientific testing like DNA analysis is that the results are not inherently biased toward inculpating the defendant; they can also exculpate.”). In marked contrast, trespass notices are non-objective affidavits of prior criminal activity that are prepared to assist and serve as evidence in future arrests - 10 - and criminal prosecutions. They are prepared by security guards, acting in a law enforcement role, to prosecute shoplifters. The security guards interact with police officers in connection with the arrests – as evidenced here by a police officer who was a signatory to one of the trespass notices. A.199; People’s Trial Exhibit No. 6. And, unlike experts reporting scientific findings, the security guards are susceptible to bias. Here, for example, Dario Delacruz decided that Austin Cornelius was attempting to steal merchandise even though Mr. Cornelius made no move to leave the store without paying. This was not an objective conclusion, supported by precise measurements, but rather a subjective determination influenced by past experience and colored by a pro-law- enforcement bias. In addition, Respondent’s brief is notable for its failure to include any substantive discussion regarding this Court’s indicia of testimony as laid out in Freycinet, 11 N.Y.3d at 41-42, and Rawlins, 10 N.Y.3d at 151-56. Resp. Br. at 26-27. Respondent did not address how this issue should be analyzed under the recent United States Supreme Court decision in Williams v. Illinois, 132 S. Ct. 2221 (2012). Indeed, Respondent only once cited the plurality’s holding that the DNA report at issue was not testimonial because it did not directly accuse the defendant of a crime – without referencing that the plurality’s analysis was rejected by a majority of the court, and without countering Mr. Cornelius’ 2Respondent does not appear to contest that the bottom portions of the trespass notices could only have been introduced for their truth. - 11 - argument that the trespass notices did directly accuse him of a crime. Resp. Br. at 25. Nor did Respondent meaningfully analyze the issue under Crawford’s various formulations of the core class of testimonial statements. Finally, Respondent renews the arguments that the trespass notices (or, at least, the top portions thereof) are not encompassed by the Confrontation Clause because they constitute party admissions by Austin Cornelius and verbal acts or commands by the Duane Reade personnel who issued them.2 Resp. Br. at 19-24. As argued in appellant’s brief, a fair reading of the trespass notices plainly indicates that the statements contained therein are not those of Mr. Cornelius but rather the Duane Reade employees. Moreover, the Confrontation Clause encompasses the implicit hearsay contained within the trespass notices – that is, what was said by the Duane Reade employees as evidenced by the notices administered by the Duane Reade employees. See App. Br. at 39-40. Moreover, the cases cited by Respondent – with the exception of Liner and Cox – are easily distinguishable because they involved affirmative statements unambiguously made by parties to the litigation rather than statements prepared by necessary but absent witnesses regarding the actions of those witnesses. Resp. Br. at 19-20. See, e.g., United States v. Tolliver, 454 F.3d 660, 665 (7th Cir. 2006) (defendant’s - 12 - tape-recorded statements constituted party admissions); United States v. Moran, 759 F.2d 777, 786 (9th Cir. 1985) (letters and deposit slips signed by defendant were party admissions); People v. Caban, 5 N.Y.3d 143, 147, 151 n.* (2005) (party admission where defendant told a group that the victim needed to be killed and offered to pay $5,000 for the murder); Reed v. McCord, 160 N.Y. 330, 340-41 (1899) (defendant’s sworn testimony was an admission). In Liner and Cox, the Appellate Division did not address whether the trespass notices constituted party admissions. See People v. Cox, 63 A.D.3d 626, 627 (1st Dep’t 2009); People v. Liner, 33 A.D.3d 479, 479 (1st Dep’t 2006). In denying the habeas petition in Liner, the court noted that “defendant, and not any Duane Reade employee, . . . attest[ed] to the ‘truth of the matter asserted’ by the document – that he was advised of the revocation of his right to enter Duane Reade stores.” Liner v. Artus, No. 08 Civ. 5886(GEL), 2008 WL 5114485, at *4 (S.D.N.Y. Dec. 5, 2008). However, the court also recognized that there were “indeed hearsay aspects to the notices, for which the business record exception is on point: it is the creator of the document who implicitly asserts that the person who signed the document is the person whose picture and other identifying information appear on it.” Id. Similarly, in Cox, the court relied on the fact that the defendant had signed the trespass notices. Cox v. Bradt, 10 Civ. 9175(JLC), 2012 WL 2282508, at *14 (S.D.N.Y. June 15, 2012). However, the trespass - 13 - notices in Cox were redacted to omit the “narrative portion of each trespass notice that described the conduct prompting its issuance.” Id. at *4. In addition, Cox was reviewed under the deferential standard of review required by the Anti- Terrorism and Effective Death Penalty Act of 1996. Id. at *9. Of course, Mr. Cornelius continues to maintain that these cases were wrongly decided. Similarly, the cases cited by Respondent in support of its argument that the top portions of the trespass notices were not introduced for their truth either contained no information about the substance of the underlying statements, involved statements made in furtherance of a criminal conspiracy, or contained undiluted orders that were not admitted for their truth. Resp. Br. at 23-24. See United States v. Bellomo, 176 F.3d 580, 586 (2d Cir. 1999) (court engaged in no discussion of the underlying statements in case involving prosecution of Genovese crime family); People v. Salko, 47 N.Y.2d 230, 236-40 (1979) (statements made in furtherance of conspiracy to bribe a police officer were admissible); see also United States v. Hodge, 295 Fed.Appx. 597, 602 (4th Cir. 2008) (after holding a hearing to determine what part of Order was viewed by jury and finding it only contained statements that defendant should cease engaging in activities, court found the “language of the Cease and Desist Order . . . not testimonial in nature”). In contrast, the statements by the Duane Reade employees were neither “command[s]” nor “verbal act[s].” Resp. Br. at 22. The trespass notices contained 3Finally, even if this Court were to find that the top halves of the trespass notices were not testimonial statements under the Confrontation Clause, the bottom halves of the trespass notices plainly were. As they were highly prejudicial, their admission would independently require reversal. - 14 - descriptions of the wrongdoing that Mr. Cornelius was alleged to have committed in the past, and assertions about what store employees or police officers said that they would do to him in the future – neither of which was relevant to his mental state if the statements were not, in fact, true. See, e.g., A.199; People’s Trial Exhibit No. 6 (“told that if I re-enter any of these stores, I can be arrested for the crime of Trespass, pursuant to section 140.10 of the New York State penal law and any other appropriate criminal charge”). Accordingly, the notices were admitted for their truth. People v. Goldstein, 6 N.Y.3d 119, 128 (2005) (will not risk an “end-run around a Constitutional prohibition” through the “factually implausible, formalist claim” that the testimony was not being offered for its truth) 3 C. Where Defense Counsel’s Questioning about the Notices Did Not Create an Incorrect, Incomplete, or Misleading Impression, the Door Was Not Opened to the Redacted Material. Respondent claims that Austin Cornelius opened the door to the information contained in the trespass notices by “pressing Delacruz as to whether he had knowledge of the facts in the redacted bottom portions.” Resp. Br. at 37. Respondent is incorrect. Of course, a defendant should not be able to use a protective ruling to create a misimpression or mislead the jury. However, that is - 15 - not what defense counsel did here. Mr. Cornelius’ attorney did no more than elicit the incontrovertible fact that Dario Delacruz was not present when the trespass notices were issued. Therefore, he had no personal knowledge of their accuracy. Certainly, introducing additional information about the past incidents – of which Delacruz concededly had no personal knowledge – did not rectify a misleading impression. Even the trial prosecutor did not argue that Mr. Cornelius had created an incomplete or misleading impression. Rather, the trial prosecutor argued that counsel had “put the fact that the trespass notice are [sic] redacted at issuance [sic],” and the jurors would wonder “why those trespass notices are issued . . . given the fact that this store detective is not familiar with the facts of . . . the 2004 trespass notices.” A.99; T.93. Essentially, the rule that Respondent posits is that any questioning that might cause a juror to wonder what is redacted from a document opens the door to the unredacted document. Of course, that is not the legal standard. As defense counsel noted, “the jury is going to always wonder what is redacted whether I question or not.” Id. In every case that Respondent cites, the door was opened because the defense had created an incorrect, incomplete, or misleading impression. See People v. Reid, 19 N.Y.3d 382, 388-89 (2012) (by arguing police conducted incomplete investigation into another potential suspect, defendant “opened the - 16 - door to . . . evidence . . . that the police had information that [the other suspect] was not at the shooting”); People v. Hall, 18 N.Y.3d 122, 132-33 (2011) (defendant opened to door to prior assault committed with codefendant when he denied prior association with codefendant); People v. Mateo, 2 N.Y.3d 383, 419- 28 (2004) (where defendant challenged voluntariness and reliability of confession by suggesting that he falsely confessed to protect his wife from criminal prosecution, defendant opened door to confessions to other unrelated murders); People v. Massie, 2 N.Y.3d 179, 184-85 (2004) (where defendant introduced prior suggestive identification procedure to challenge in-court identification, the prosecution could present evidence that the witness also independently identified defendant in a non-suggestive procedure); People v. Rojas, 97 N.Y.2d 32, 35-36, 39 (2001) (where defendant argued that he was unjustly confined in solitary confinement, prosecution permitted to introduce evidence that defendant was segregated due to prior assault of another inmate). Austin Cornelius’ case is plainly distinguishable. In none of the foregoing cases was the door opened because the defense created an indisputably correct impression that the witness was unaware of underlying facts. The “opening the door” theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination. The principle merely allows a party to explain or clarify on redirect matters that have been put in - 17 - issue for the first time on cross-examination, and the trial court should normally “exclude all evidence which has not been made necessary by the opponent’s case in reply.” (6 Wigmore, § 1873, p 672 [emphasis in original].) People v. Melendez, 55 N.Y.2d 445, 452 (1982); see also Massie, 2 N.Y.3d at 184 (“While Melendez discussed only the issue of when cross-examination questions open the door to redirect examination, we have employed a similar analysis in deciding other ‘opening the door’ issues.”). The unredacted information was wholly unnecessary because, whether redacted or unredacted, Delacruz still had no personal knowledge of the information contained therein. Accordingly, the lower court’s ruling was plainly erroneous. As noted supra, Respondent cannot cite a single case that supports its position. Defense counsel did no more than elicit that Delacruz had not issued the earlier trespass notices and was unaware of the basis of their issuance. This not only did not create a misleading impression, it is the crux of the Confrontation Clause problem in this case. If the prosecution had wanted to address any concerns about their issuance, there was a proper way to do so – through live testimony. Finally, Respondent’s claim that the jury may have speculated that Mr. Cornelius was told to leave due to invidious “discrimination” rather than a “lawful order” is a baseless distraction. Resp. Br. at 36. As noted earlier, the unredacted - 18 - trespass notices already contained statements that the absent witnesses had seen Mr. Cornelius engage in illegal conduct. The entire purpose of unredacting the trespass notices was to introduce even more damaging charges of prior bad acts evidence, which Mr. Cornelius was unable to challenge through cross- examination. Of course, neither the statements about witnessing illegal acts nor the more damaging descriptions of the specific misconduct should have been allowed in the absence of live testimony. But it is disingenuous to claim that the proper remedy for defense questions about Delacruz’s lack of knowledge of the alleged illegal acts was to introduce even more specific information about which he still knew nothing. D. Where the Trespass Notices Were Introduced to Prove Austin Cornelius’ Knowledge of Unlawful Entry and Intent to Commit a Crime, And Where his Actions Were Otherwise Easily Susceptible to Innocent Interpretation, their Erroneous Admission Was Not Harmless Beyond a Reasonable Doubt. Respondent’s argument that Austin Cornelius was not prejudiced by the admission of the two signed trespass notices ignores both the standard for assessing errors of constitutional magnitude and the actual disputed issues in this case. Resp. Br. at 38-41. With respect to the former point, Respondent never acknowledges the high burden of proving that any error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967) (“before a federal constitutional error can be held harmless, the court must be able to declare 4Austin Cornelius testified at trial and denied both knowledge that he was trespassing in Duane Reade and an intent to commit a crime therein. A.153; A.172-73; T.155; T.174-75. - 19 - a belief that it was harmless beyond a reasonable doubt”). “Ultimately, however overwhelming may be the quantum and nature of other proof, the error is not harmless . . . if there is a reasonable possibility that the . . . [error] might have contributed to the conviction.” People v. Hardy, 4 N.Y.3d 192, 198 (2005) (internal quotation marks omitted). This standard is a high one. Mr. Cornelius was convicted of burglary in the second degree. Without the two trespass notices, the prosecution’s only direct evidence against Mr. Cornelius was his own conduct in the Duane Reade, during which time he never attempted to leave the store without paying, a prior petit larceny conviction at Duane Reade, and a prior burglary conviction, for which Dario Delacruz issued a trespass notice.4 The trespass notice issued by Delacruz related to a different Duane Reade than the one that Mr. Cornelius was charged with unlawfully entering in the instant case. A.6-7; A.195; Indictment Number 5559/09 (979 Third Avenue); Trespass Notice, entered as People’s Trial Exhibit No. 4 (405 Lexington Avenue). In order to convict an individual of burglary, it is necessary to prove that the individual knew that his or her entry was unlawful, and that the entry was made 5Respondent claims that the trespass notices were introduced for the “single purpose” of proving unlawful entry. Resp. Br. at 38. However, the court instructed the jurors that the allegations of past criminal conduct, including that contained in the trespass notices, could be considered on the issues of intent, identity, and absence of mistake. A.92; A.190; T.86; T.254. - 20 - with an unlawful criminal intent. As Respondent acknowledged in its Appellate Division brief: Had only one of the notices been admitted into evidence, defendant’s claim that he did not remember receiving or signing the notice might have appeared to have more credence . . . [T]hat three trespass notices had been previously issued to defendant by Duane Reade made it less likely that he did not know that his entering the Duane Reade store in this case was unlawful, or that he had entered the store with a non-criminal intent.5 Respondent’s Appellate Division Brief at 33. See also Resp. Br. at 51 (“fact that defendant had received multiple warnings from Duane Reade was relevant to refute his assertions that he did not believe that he was trespassing”). Indeed, if only one trespass notice had been entered, the jury may well have found that the prosecution did not prove beyond a reasonable doubt that Mr. Cornelius knew that his entry into the particular Duane Reade on 979 Third Avenue was unlawful. In addition, without the petit larceny conviction and three separate trespass notices charging prior instances of shoplifting, the jurors could have found that the prosecution did not prove beyond a reasonable doubt that Mr. Cornelius intended to commit a crime inside the Duane Reade. - 21 - Tellingly, Respondent’s argument focuses largely on issues that are undisputed. For example, Respondent addresses at great length the circumstances under which Dario Delacruz issued the 2008 trespass notice. Resp. Br. at 39. However, the relevant inquiry was not whether Mr. Cornelius “had unlawfully entered the Duane Reade store,” but whether he knew the entry was unlawful. Id. Especially where there was no evidence that Mr. Cornelius reviewed or signed the 2008 trespass notice, in the absence of the other trespass notices, the jury could have found that he was unaware that his entry into the Third Avenue Duane Reade was unlawful. The few cases cited by Respondent to support its position are inapposite. In Rawlins, 10 N.Y.3d at 157-58, this Court found that the admission of a fingerprint analysis by an unavailable witness was harmless error because another expert witness, who did testify, independently analyzed the data and also concluded that there was a positive match. Mr. Cornelius’ case involved three trespass notices that were issued by different individuals under different circumstances. It did not involve different expert witnesses independently reviewing the same data. Therefore, the two cases are not analogous at all. In People v. Douglas, 4 N.Y.3d 777, 778-79 (2005), the defendant was apprehended immediately after a knife-point robbery and identified by the complaining witness, after which the knife was recovered from him. In addition, - 22 - there was substantial corroboration of the witness’s identification. Id. at 779. Thus, in Douglas, there was no doubt as to the defendant’s identity. In Mr. Cornelius’ case, the relevant question was not the more concrete issue of identity but instead the inner workings of his mind – whether he knew his entry was unlawful and intended to commit a crime in the store. Errors of constitutional magnitude will rarely be harmless. Hardy, 4 N.Y.3d at 198 (“however overwhelming may be the quantum and nature of other proof, the error is not harmless . . . if there is a reasonable possibility that the . . . [error] might have contributed to the conviction”) (internal quotation marks and citations omitted). Moreover, because a defendant’s mental state is difficult to know with complete certainty, it cannot reasonably be claimed that the error committed here – the admission of numerous trespass notices containing allegations of prior shoplifting crimes to prove intent and knowledge of unlawful entry – could not possibly have affected the verdict given that Mr. Cornelius’ actions were otherwise wholly susceptible to innocent interpretation. See Goldstein, 6 N.Y.3d at 130 (“The People’s case that defendant was sane . . . was a strong one, but we cannot say it was so strong that no rational jury could have rejected it. The question before the jury was, in essence, what was going on in defendant’s admittedly diseased mind . . .; this is not an easy question to answer with complete certainty.”). - 23 - Finally, Respondent claims that Austin Cornelius was trying to use the Confrontation Clause “as a sword to prevent the introduction of relevant, probative, and non-testimonial records,” and that the defense should have called the Duane Reade employees to testify. Resp. Br. at 40 (citing Williams, 132 S. Ct. at 2228). In making a legitimate and appropriate objection, Mr. Cornelius was simply asking the court to follow what the United States and New York Constitutions require. In addition, it turns the burden of proof squarely on its head to argue that Mr. Cornelius had the burden of calling witnesses if he wanted to confront them. Although the Williams plurality noted that the defense could subpoena the witness, the plurality had determined that the challenged evidence was not testimonial. Moreover, as noted in the Williams concurrence, the Court in Melendez-Diaz previously “rejected this reasoning . . ., holding that the defendant’s subpoena power ‘[wa]s no substitute for the right of confrontation.’” Williams, 132 S. Ct. at 2263 n.6 (Thomas, J., concurring in judgment) (quoting Melendez-Diaz, 557 U.S. at 324); see also Melendez-Diaz, 557 U.S. at 324 (“the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court”). - 24 - POINT II WHERE THE ALLEGATIONS THAT AUSTIN CORNELIUS HAD COMMITTED MULTIPLE PRIOR THEFTS AND AN ASSAULT SPECIFICALLY IN OTHER DUANE READE STORES WERE UNNECESSARY TO ASSESS HIS CREDIBILITY, THE COMBINED WEIGHT OF THE SANDOVAL AND MOLINEUX WAS UNNECESSARILY PREJUDICIAL AND REQUIRES REVERSAL OF HIS CONVICTION (replying to Respondent’s Brief at 42-61). Respondent’s assertion that the trial court conducted a proper Sandoval balancing is belied by the trial court’s improper conflation of the Molineux inquiry with the Sandoval inquiry. Resp. Br. at 58. See A.37; H.110 (justifying admission of material under Sandoval on the basis that “the probative value outweigh[ed] the prejudice from the standpoint of his intent and his knowledge, his notice that he wasn’t supposed to be in Duane Reade.”). This was not an abuse of discretion; it was actual error. See People v. Gonzalez, 221 A.D.2d 203, 206-07 (1st Dep’t 1995) (conviction vacated where court used improper legal standard in Sandoval ruling). In People v. Smith, 18 N.Y.3d 588 (2012), this Court recently stated, “We reiterate, however, that trial courts should take care in weighing ‘whether the prejudicial effect of impeachment testimony far outweighs the probative worth of the evidence on the issue of credibility.’” Id. at 594 (citing People v. Sandoval, 34 N.Y.2d 371, 376 (1974)). Deference to a lower court’s exercise of discretion presupposes that the court meaningfully balanced competing concerns. Here, the - 25 - court allowed additional questioning about prior bad acts by bootstrapping the Sandoval determination onto the already broad Molineux ruling. In addition to conflating the Molineux and Sandoval inquiries in ruling on the admissibility of the evidence, the trial court conflated the two bodies of material in its final instructions. A.190; T.254. Respondent’s assertion that the trial court appropriately instructed the jurors regarding Sandoval material, Resp. Br. at 59-60, as well as regarding Molineux material, Resp. Br. at 49-50, is incorrect. First, the trial court failed to give any instruction about the purpose of the trespass notices when they were introduced pursuant to the Molineux ruling, A.99; A.104; T.93, T.98. Second, the trial court failed to provide any instruction during Mr. Cornelius’ testimony about what questioning was permitted under Sandoval and how the jury was to consider the evidence. Finally, the trial court failed to make any meaningful demarcation in its final instructions between material that was admitted for Sandoval purposes and material that was admitted for Molineux purposes. A.190; T.254. Thus, the court allowed the jury to consider all of the prior crimes evidence for both purposes, even though it had previously limited the quantity of prejudicial evidence that was admissible for each one, thereby essentially doubling the court’s Sandoval and Molineux rulings and vitiating its purported Sandoval compromise. This failure only served to strengthen the overwhelming cumulative effect of the court’s admission, through - 26 - Molineux and Sandoval rulings, of numerous acts of conduct so similar in nature to the charged conduct as to make a fair trial impossible. Finally, the trial court is required to ensure that its Sandoval ruling does not create an undue risk that the defendant will be convicted on the basis of propensity considerations. See, e.g., People v. Bowles, 132 A.D.2d 467, 467 (1st Dep’t 1987) (error in permitting cross-examination on “petty thefts similar to the crime charged,” especially given that the prior convictions also occurred in a Macy’s). Here, the court failed in its duty. The similarities between the Sandoval material and the charged crime in this case were simply too numerous to allow a fair trial. Mr. Cornelius was charged with causing physical injury in a Duane Reade after being apprehended for suspected petit larceny by a security guard who had previously given him a trespass notice in a Duane Reade. The court allowed him to be cross-examined about three prior acts of petit larceny in a Duane Reade, three corresponding trespass notices issued by Duane Reade, and an assault that also occurred in a Duane Reade. A.37; H.110. (In addition, through its Molineux ruling, the court allowed direct evidence of three trespass notices, which were either the subject of testimony or admitted in unredacted form containing a narrative of the charges, a petit larceny in a Duane Reade, and another shoplifting incident in a Duane Reade that had led to a burglary conviction and had involved the same security guard who was a primary witness in the instant case. A.26-29; - 27 - A.35; H.99-102; H.108.) Thus, in a case involving theft and assault, the jurors were overwhelmed by specific and detailed information that Mr. Cornelius had numerous convictions for the exact same conduct and in the exact same chain of stores, which cumulatively went far beyond the court’s initial Molineux ruling or the Sandoval compromise. Mr. Cornelius does not argue that he should have been shielded from all cross-examination, but rather that the highly specific nature and the amount of what was permitted through the Sandoval ruling, especially when combined with the Molineux material, made it inevitable that the jurors would use this material to determine propensity, rather than to assess credibility or for another permissible purpose. - 28 - CONCLUSION FOR THESE REASONS AND THE REASONS CONTAINED IN APPELLANT’S OPENING BRIEF, THIS COURT SHOULD REVERSE AUSTIN CORNELIUS’ CONVICTION OF BURGLARY IN THE SECOND DEGREE AND REMAND THE CASE FOR A NEW TRIAL. Dated: September 18, 2012 New York, New York Respectfully submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: ____________________________ MARGARET E. KNIGHT, ESQ. Senior Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Tel. No.: (212) 402-4100 Fax No.: (212) 402-4199