The People, Respondent,v.Austin Cornelius, Appellant.BriefN.Y.February 6, 2013To 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. BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: MARGARET E. KNIGHT, ESQ. Senior Staff Attorney ANNA ROBERTS, ESQ. Of Counsel OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 June 29, 2012 - i - TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. The Molineux Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. The Sandoval Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. The Prosecution’s Case at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 D. The Defense Case at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 E. The Prosecution’s Closing Argument . . . . . . . . . . . . . . . . . . . . . . . 15 F. The Jury Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 G. The Verdict and the Sentencing Proceeding . . . . . . . . . . . . . . . . . . 17 H. The Direct Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARGUMENT POINT I TWO TRESPASS NOTICES WERE IMPROPERLY INTRODUCED AT AUSTIN CORNELIUS’ TRIAL IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO CONFRONTATION BECAUSE THE TRESPASS NOTICES WERE AKIN TO FORMAL AFFIDAVITS AS THEY WERE SIGNED, DATED, AND WITNESSED, THEY CONTAINED DIRECT ACCUSATIONS OF CRIMINAL ACTIVITY, AND THEY WERE PREPARED IN CONTEMPLATION OF USE IN A CRIMINAL PROSECUTION. . . . . . 19 - ii - A. Statements Within Each of Two Trespass Notices Violated the Confrontation Clause Because They Were Testimonial. . . . . . . . . . 20 i. The Supreme Court Laid Out Various Formulations of the Core Class of Testimonial Statements in Crawford. . . . . 20 ii. Both Trespass Notices Contain Statements that Fall Within Crawford’s Formulations of the Core Class of Testimonial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 iii. In Cases Dealing with Scientific Procedures, this Court Laid Out Indicia of Testimoniality. . . . . . . . . . . . . . . . . . . . . 29 iv. Both Trespass Notices Contain Statements that Display Each of this Court’s Indicia of Testimoniality. . . . . . . . . . . . 30 B. Respondent’s Previous Arguments that the Confrontation Clause Does Not Apply Are Unavailing. . . . . . . . . . . . . . . . . . . . . . 34 i. Admission of the Trespass Notices as Business Records Does Nothing to Lessen the Confrontation Clause’s Protections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 ii. The Trespass Notices Were Offered for Their Truth. . . . . . . 35 iii. The Trespass Notices Were Statements of Absent Witnesses and not Admissions. . . . . . . . . . . . . . . . . . . . . . . . 39 iv. Defense Counsel Did Not Open the Door to a Violation of Austin Cornelius’ Confrontation Clause Rights. . . . . . . . . 40 C. The Erroneous Admission of Two Sets of Statements in Violation of the Confrontation Clause Was Not Harmless Beyond a Reasonable Doubt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 - iii - i. The Trespass Notices, Placed Before the Jury without Redactions or Limiting Instructions, Provided Great Benefit to the Prosecution, as Respondent Has Previously Admitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 ii. Where These Statements Were Ripe for Cross- Examination, the Untested Introduction of the Trespass Notices Deprived Mr. Cornelius of Vital Areas of Inquiry, in Precisely the Way that the Confrontation Clause Prohibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 POINT II THE EVIDENCE THAT THE COURT PERMITTED UNDER SANDOVAL AND MOLINEUX WAS CUMULATIVE, EXCESSIVE, AND OVERWHELMINGLY PREJUDICIAL IN ITS SIMILARITY TO THE CRIME CHARGED, THEREBY DEPRIVING AUSTIN CORNELIUS OF A FAIR TRIAL. . . . . . . . . . . . 52 A. The Nature and Quantity of the Material Permitted under Sandoval Created a Strong Likelihood that It Would Be Used to Determine Propensity, Rather Than Assess Credibility. . . . . . . . 53 B. The Amount and Nature of the Material Admitted under Molineux Created a Strong Risk that the Material Would Be Considered for Propensity Purposes, Rather Than Legitimate Molineux Purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 C. The Sandoval and Molineux Errors Combined to Deprive Mr. Cornelius of a Fair Trial and Were Not Harmless Error. . . . . . . . . . 60 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 - iv - TABLE OF AUTHORITIES CASES PAGE Bd. of Ed. of Belmont Cent. Sch. Dist. v. Gootnick, 49 N.Y.2d 683 (1980) . . . . 32 Brandes Meat Corp. v. Cromer, 146 A.D.2d 666 (2d Dep’t 1989) . . . . . . . . . . . 32 Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) . . . . . . . . . . . . . . . . . . . 22, 47 California v. Green, 399 U.S. 149 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Colon v. Ercole, 09 Civ. 746(RLE), 2011 WL 1197656 (S.D.N.Y. Feb. 1, 2011), report and recommendation adopted, 09 Civ. 746(GBD), 2011 WL 1197658 (S.D.N.Y. Mar. 29, 2011) . . . . . . . . . . . . . . . . . . . . . . 40 Com. v. Stone, 291 S.W.3d 696 (Ky. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Crawford v. Washington, 541 U.S. 36 (2004) . . . . . . . . . 19-21, 23-25, 31, 34, 35 Davis v. Alaska, 415 U.S. 308 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Davis v. Washington, 547 U.S. 813 (2006) . . . . . . . . . . . . . . 21, 22, 24, 28, 29, 32 Derr v. State, 422 Md. 211 (Md. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Idaho v. Wright, 497 U.S. 805 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . 37 Langham v. State, 305 S.W.3d 568 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . 38 Liner v. Artus, No. 08 Civ. 5886(GEL), 2008 WL 5114485 (S.D.N.Y. Dec. 5, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Long v. State, 7 N.Y.3d 269 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 - v - Mason v. Scully, 16 F.3d 38 (2d Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 McBee v. Burge, 644 F. Supp. 2d 270 (2009), aff’d, 395 F. App’x 762 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Medina v. State, 122 Nev. 346 (Nev. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) . . . . . . . . . 24, 25, 30, 34 Michigan v. Bryant, 131 S. Ct. 1143 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Ohio v. Roberts, 448 U.S. 56 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Bell, 15 Misc. 3d 116 (2d Dep’t 2007) . . . . . . . . . . . . . . . . . . . . . . 58, 59 People v. Bowles, 132 A.D.2d 467 (1st Dep’t 1987) . . . . . . . . . . . . . . . . . . . 54, 55 People v. Bradley, 8 N.Y.3d 124 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Brown, 13 N.Y.3d 332 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 People v. Bukovsky, 183 A.D.2d 942 (3d Dep’t 1992) . . . . . . . . . . . . . . . . . . . . 56 People v. Campney, 94 N.Y.2d 307 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 People v. Carmack, 52 A.D.2d 264 (4th Dep’t 1976) . . . . . . . . . . . . . . . . . . . . . . 54 People v. Coe, 95 A.D.2d 685 (1st Dep’t 1983) . . . . . . . . . . . . . . . . . . . . . . . 55, 56 People v. Cooke, 101 A.D.2d 983 (3d Dep’t 1984) . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Cornelius, 89 A.D.3d 595 (1st Dep’t 2011), lv. granted, 18 N.Y.3d 993 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . x, 17, 18 People v. Correal, 160 A.D.2d 85 (1st Dep’t 1990) . . . . . . . . . . . . . . . . . . . . . . . 58 - vi - People v. Cox, 63 A.D.3d 626 (1st Dep’t 2009) . . . . . . . . . . . . . . . . . . . . . . . . 4, 46 People v. Cratsley, 86 N.Y.2d 81 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 People v. Crimmins, 36 N.Y.2d 230 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Dickman, 42 N.Y.2d 294 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 People v. Doty, 73 A.D.2d 802 (4th Dep’t 1979) . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Ely, 68 N.Y.2d 520 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 58 People v. Fackelman, 489 Mich. 515 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Finger, 166 A.D.2d 714 (2d Dep’t 1990) . . . . . . . . . . . . . . . . . . . . . . . 55 People v. Freycinet, 11 N.Y.3d 38 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-34 People v. Fuller, 197 A.D.2d 881 (4th Dep’t 1993) . . . . . . . . . . . . . . . . . 53, 55, 56 People v. Goldstein, 6 N.Y.3d 119 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 36, 42, 62 People v. Grant, 7 N.Y.3d 421 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 People v. Greene, 306 A.D.2d 639 (3d Dep’t 2003) . . . . . . . . . . . . . . . . . . . . 59, 60 People v. Hayes, 97 N.Y.2d 203 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Hicks, 88 A.D.2d 519 (1st Dep’t 1982) . . . . . . . . . . . . . . . . . . . . . . . . 56 People v. Liner, 9 N.Y.3d 856 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 31 People v. Massie, 2 N.Y.3d 179 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 People v. Mayrant, 43 N.Y.2d 236 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 56 People v. Molineux, 168 N.Y. 264 (1901) . . . . . . . . . . . . . . . . . . . . . . . . . xi, 2, 52 - vii - People v. Pacer, 6 N.Y.3d 504 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34, 45, 49 People v. Pavao, 59 N.Y.2d 282 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Ramos, 70 N.Y.2d 639 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42 People v. Rawlins, 10 N.Y.3d 136 (2008) . . . . . . . . . . . . . . . . . . . . . 29-31, 33, 34 People v. Reid, 82 A.D.3d 1495 (3d Dep’t 2011), overruled on other grounds, Slip Op. 04272, 2012 WL 1986516 (2012) . . . . . . . . . . . . . . . . . . . . . 39, 42 People v. Robinson, 140 A.D.2d 644 (2d Dep’t 1988) . . . . . . . . . . . . . . . . . . . . . 40 People v. Sanchez, 154 A.D.2d 15 (1st Dep’t 1990) . . . . . . . . . . . . . . . . . . . . . . 58 People v. Sandoval, 34 N.Y.2d 371 (1974) . . . . . . . . . . . . . . . . . . . . . xi, 4, 52, 53 People v. Schwartzman, 24 N.Y.2d 241 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . 53 People v. Smith, 18 N.Y.3d 588 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Walker, 83 N.Y.2d 455 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 People v. Williams, 56 N.Y.2d 236 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 55 People v. Wlasiuk, 32 A.D.3d 674 (3d Dep’t 2006) . . . . . . . . . . . . . . . . . . . . 57-60 People v. Wright, 5 A.D.3d 873 (3d Dep’t 2004) . . . . . . . . . . . . . . . . . . . . . . 59, 60 Pointer v. Texas, 380 U.S. 400 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Reed v. Federal Ins. Co., 71 N.Y.2d 581 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . 32 Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Sanabria v. State, 974 A.2d 107 (Del. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38 Siwek v. Mahoney, 39 N.Y.2d 159 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 - viii - State v. Bellerouche, 129 Wash. App. 912 (Wash. Ct. App. 2005) . . . . . . . . . . . 34 State v. Mechling, 633 S.E.2d 311, 321 (W.Va. 2006) . . . . . . . . . . . . . . . . . . . . 21 State v. Stahl, 111 Ohio St. 3d 186 (Ohio 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 21 State v. Swaney, 787 N.W.2d 541 (Minn. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 40 United States v. Cromer, 389 F.3d 662 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 42 United States v. Inadi, 475 U.S. 387 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 United States v. Maher, 454 F.3d 13 (1st Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . 36 United States v. Silva, 380 F.3d 1018 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 36 Williams v. Illinois, No. 10-8505, 2012 WL 2202981 (Jun. 18, 2012) . 23, 25, 27, 30, 35 CONSTITUTIONAL PROVISIONS N.Y. Const. art. I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 52 U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 52 U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 52 STATUTES N.Y. C.P.L.R. § 4518 (McKinney 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 N.Y. Crim. Proc. Law § 450.90 (McKinney 2005) . . . . . . . . . . . . . . . . . . . . . . . . xi N.Y. Penal Law § 140.10 (McKinney 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 20, 26 - ix - N.Y. Penal Law § 140.25 (McKinney 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x OTHER AUTHORITIES Alfred J. Ayer, The Problem of Knowledge (1956) . . . . . . . . . . . . . . . . . . . . . . . 38 Eric A. Johnson, Knowledge, Risk, and Wrongdoing: The Model Penal Code’s Forgotten Answer to the Riddle of Objective Probability, 59 Buff. L. Rev. 507 (2011) . . . . . . . . . . 38 Jeffrey L. Fisher, Originalism as an Anchor for the Sixth Amendment, 34 Harv. J.L. & Pub. Pol’y 53 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Kaye et al., The New Wigmore: Expert Evidence § 3.7 (Supp. 2005) . . . . . . . . . 36 Michael D. Cicchini, Dead Again: The Latest Demise of the Confrontation Clause, 80 Fordham L. Rev. 1301 (2011) . . . . . . . . . . . . . . 36 Peter Nicolas, But What if the Court Reporter is Lying? The Right to Confront Hidden Declarants Found in Transcripts of Former Testimony, 2010 B.Y.U. L. Rev. 1149 (2010) . . . . . . . . . . . . . . . 34 Prince, Richardson on Evidence, § 8–306 (Farrell 11th Ed.) . . . . . . . . . . . . . . . . 49 Richard D. Friedman, Crawford, Davis, and Way Beyond, 15 J.L. & Pol’y 553 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 1For convenience, the 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; the transcript of the trial will be cited as “T.” followed by the page number; and the transcript of the sentencing proceeding will be cited as “S.” followed by the page number. - x - COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : AUSTIN CORNELIUS, : Defendant-Appellant. : ---------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Susan Phillips Read, Judge of the Court of Appeals, granted on April 16, 2012, appeal is taken from an order of the Appellate Division, First Department, entered on November 22, 2011, People v. Cornelius, 89 A.D.3d 595 (1st Dep’t 2011), lv. granted, 18 N.Y.3d 993 (2012); A.1-5,1 which modified a judgment entered on June 10, 2010, by the Supreme Court, New York County, convicting Austin Cornelius, after trial, of one count of burglary in the second degree, N.Y. Penal Law § 140.25(1)(b) (McKinney 2010), to the extent of - xii - Mr. Cornelius of a fair trial, especially in conjunction with the Molineux material, and the proposed Sandoval compromise of limiting the questioning to whether Mr. Cornelius had prior convictions. A.36-38; H.109-11. No stay of execution of sentence has been sought, and appellant is currently serving his sentence. - xi - reducing the originally imposed sentence of a determinate term of ten years to seven years and otherwise affirmed. A motion to this Court to assign Richard M. Greenberg, Esq., as counsel on appeal was granted on May 31, 2012. This Court has jurisdiction, pursuant to N.Y. Crim. Proc. Law § 450.90(1) (McKinney 2005), to entertain this appeal and review the questions raised. This case presents three preserved questions of law. As to the first question, raised in Point I, defense counsel objected prior to trial that the introduction of the trespass notices violated Mr. Cornelius’ right to confront the witnesses against him, and counsel additionally cited appellate authority addressing this issue. A.40-41; VD.3-4. The second question presented, raised in Point II, was preserved by defense counsel’s repeated oral objections and attempts to preclude or at least limit the quantity of prior bad acts evidence admitted pursuant to People v. Molineux, 168 N.Y. 264 (1901), because it carried a grave risk that the jury would convict Mr. Cornelius based on his prior actions rather than what happened in the case at hand. See, e.g., A.18-21; A.23-25; A.27; A.29; H.91-94; H.96-98; H.100; H.102. The third question, which is related to the second question and also raised in Point II, was preserved by oral objections that the admission of additional prior bad acts evidence, pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), would deprive - 1 - QUESTIONS PRESENTED 1. Were two trespass notices improperly introduced at trial in violation of the Confrontation Clause where the trespass notices were akin to formal affidavits, as they were signed, dated, and witnessed, they contained direct accusations of criminal activity, and they were prepared in contemplation of use in a criminal prosecution? 2. Was the evidence that the court permitted under Sandoval and Molineux cumulative, excessive, and overwhelmingly prejudicial in its similarity to the crime charged, thereby depriving Austin Cornelius of a fair trial? - 2 - STATEMENT OF FACTS Austin Cornelius was indicted for one count of burglary in the second degree for an incident that occurred on January 30, 2009. A.6-7; Indictment Number 5559/09. He was alleged to have entered Duane Reade with the intent to commit a crime, after previously having his license to enter Duane Reade revoked, and to have caused physical injury to a Duane Reade store detective, Dario Delacruz. A. The Molineux Hearing Prior to trial, the prosecution requested to introduce the facts of two prior convictions for similar conduct, each involving Duane Reade, six trespass notices, and additional hearsay that Mr. Cornelius had previously shoplifted in Duane Reade and once struggled with a store employee upon being stopped, for the purposes of establishing intent, knowledge, motive, and identity and explaining a store detective’s conduct, pursuant to People v. Molineux, 168 N.Y. 264 (1901). A.8-17; H.81-90. The court ultimately ruled that the prosecution could introduce evidence relating to the convictions for two similar crimes purportedly committed by Mr. Cornelius in Duane Reade and three trespass notices. A.26-30; H.99-103. The first of the alleged incidents was a petit larceny from January 30, 2009, which had occurred on the same day as the charged incident. A.8; A.26-28; H.81; - 3 - H.99-101. The court permitted the introduction of the facts of that case, including the theft of 167 toothbrushes in a bag. Id. The second incident was a third-degree burglary conviction from July 1, 2008. A.9; A.28; H.82; H.101. In that case, the security guard who stopped Mr. Cornelius was Dario Delacruz, the same individual who stopped him in the charged incident. Id. The court permitted Delacruz to testify to this incident, during which he issued a trespass notice. A.28; H.101. The court also permitted the prosecution to elicit that Mr. Cornelius was subsequently convicted of third- degree burglary. A.28-29; H.101-02. The court initially indicated that the prosecution could not ask about the underlying facts of this incident. A.28; A.35; H.101; H.108. However, after a subsequent bench conference, the court suggested that the trespass notice did not need to be redacted, since its contents would be coming out through Delacruz. A.43; VD.6. The narrative portion of the trespass notice stated that “Mr. Austin was observed removing and concealing 55 Visine inside a shopping bag then attempting leaving the store without paying,” A.195; People’s Exhibit Number 4 (“Ex.4”), and Delacruz did indeed testify to those facts at trial. A.90-91; T.84-85. In addition to permitting that trespass notice, the court allowed the prosecution to introduce two additional trespass notices. A.29; H.102. 2People v. Sandoval, 34 N.Y.2d 371 (1974). - 4 - Defense counsel repeatedly objected that the evidence of prior bad acts evidence should be precluded or at least limited, voicing his concern that the jury would convict Mr. Cornelius based on his prior actions rather than what happened in the case at hand. A.18-21; A.23-25; A.27; A.29; H.91-94; H.96-98; H.100; H.102. In addition, referring back to a previous discussion of People v. Cox, 63 A.D.3d 626 (1st Dep’t 2009), counsel asked that the trespass notices be redacted if they were admitted at trial. A.15-16; A.27; A.35; H.88-89; H.100; H.108. Defense counsel also put on the record a conversation about the trespass notices that took place at a bench conference. A.40; VD.3. He indicated that during the bench conference he had discussed People v. Liner, 9 N.Y.3d 856 (2007). Id. He explained that he was invoking case law in support of a Confrontation Clause objection to the admission of the trespass notices. A.40-41; VD.3-4. B. The Sandoval Hearing In its Sandoval application,2 the prosecution asked the court to permit cross-examination regarding five of Mr. Cornelius’ twenty-two prior convictions. A.30-32; A.37; H.103-05; H.110. Defense counsel objected that the use of these incidents would deprive Mr. Cornelius of a fair trial, especially when combined with the Molineux material. A.36-38; H.109-11. He suggested a Sandoval - 5 - compromise, limiting the questioning to whether Mr. Cornelius had prior convictions. Id. The court nonetheless permitted cross-examination on four of the convictions. A.37; H.110. It stated that it was “ruling at this point that the probative value outweighs the prejudice from the standpoint of his intent and his knowledge, his notice that he wasn’t supposed to be in Duane Reade.” Id. (emphasis added). In particular, the court allowed cross-examination about the facts that Mr. Cornelius was convicted on October 10, 2003, of committing petit larceny at a Duane Reade, and that a trespass notice was given; that he was convicted on May 20, 2004, of committing petit larceny, and that a trespass notice was given; that he was convicted on August 6, 2004, of committing petit larceny at a Duane Reade, and that a trespass notice was given; and that he was convicted on September 20, 2006, of assaulting someone at a Duane Reade. Id. C. The Prosecution’s Case at Trial In her opening statement, the prosecutor mentioned that the scene of the incident for which Mr. Cornelius was on trial was not the first Duane Reade that he had entered that day, and that he had shoplifted from another Duane Reade earlier in the day. A.48; T.18. She also stated that it was Dario Delacruz who issued Mr. Cornelius an earlier trespass notice on July 1, 2008. Id. She informed - 6 - the jurors that they would be “hearing a lot” about “something called a trespass notice.” A.47; T.17. Dario Delacruz: Direct Examination Dario Delacruz, a Duane Reade “store detective,” testified extensively about other crimes allegedly committed by Austin Cornelius, as well as the charged incident. See, e.g., A.90-91; A.100-01; A.104-08; T.84-85; T.94-95; T.98-102. For example, Delacruz testified that, on July 1, 2008, he was working at Duane Reade. A.90; T.84. He saw Mr. Cornelius “concealing” eye drops inside a bag. A.90-91; T.84-85. He stopped Mr. Cornelius, who handed the merchandise over, and who then “all of a sudden” tried to get away. A.91; T.85. Delacruz issued a trespass notice. A.91; A.95-96; T.85; T.89-90. He also explained to the jury that “[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.” A.91; T.85. The judge instructed the jury that Delacruz’s testimony about this incident had been allowed in “only as to the question of the defendant’s intent with regard to the current alleged crime, and his identity, and for absence of mistake.” A.92; T.86. After eliciting testimony from Delacruz that Duane Reade trespass notices were completed “[a]t the time” of the events that they described, A.95; A.89, the - 7 - prosecution entered three trespass notices into evidence as business records. A.99; T.93. One trespass notice, relating to the July 1, 2008, eye drop episode, was signed and issued by Delacruz. A.95-96; A.195; T.89-90; Ex.4. The other two, dated May 20, 2004, and August 6, 2004, respectively, had been issued before Delacruz started working at Duane Reade. A.96; A.197; A.199; T.90; People’s Exhibit Number 5A (“Ex.5A”); People’s Exhibit Number 6A (“Ex.6A”). The trespass notice that was dated August 6, 2004, bore the signature of a “PO B Giordano;” Police Officer Giordano had arrested Mr. Cornelius on August 6, 2004, for a July 30, 2004, incident. See A.199-200; Ex.6A; Criminal Record Information and Management System for New York County, at https://sslvpn. courts.state.ny.us/, Docket Number 2004NY058252 (“APO NAME: GIORDANO”; “INCIDENT DATE: 7/30/2004”). Before the trial even started, defense counsel had objected to the admission of the two trespass notices on Confrontation Clause grounds. A.40-41; VD.3-4. In addition, at trial, he objected that Delacruz was not qualified as a custodian of records with regard to the two trespass notices. A.93-94; T.87-88. Defense counsel was permitted to voir dire on this issue. A.95; T.89. During his voir dire, he attempted to show that Delacruz was insufficiently familiar with the circumstances of the administration of the trespass notices, which were issued before he worked at Duane Reade. A.96-99; T.90-93. 3From the May 20, 2004, trespass notice, Delacruz read, “I Austin Cornelius understand that my privilege to reenter any Duane Reade store is revoked. I was told that if I reentered any of these stores I would be arrested for the crime of trespass.” A.107; T.101. The relevant portion of the trespass notice as entered into evidence read, “I, Austin Adriel Cornelius, understand that my privilege to enter any and all Duane Reade stores is revoked. I was 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.” A.197; Ex.5A. - 8 - The prosecution then argued that defense counsel’s voir dire had “put the fact that the trespass notice[s we]re redacted at issuance,” and that the jury would “wonder why those trespass notices [we]re issued especially given his line of questioning, given the fact that this store detective [wa]s not familiar with the facts of the trespass notices. . .” A.99; T.93. Over defense counsel’s objections, the court not only admitted all three trespass notices but admitted them without redactions. A.100; A.104; T.94; T.98. The court gave no instruction to the jury regarding the trespass notices at the time of their admittance. Delacruz testified about each of the three trespass notices. With regard to the one that he issued, he read to the jury what he purportedly related to Mr. Cornelius: “I Austin Cornelius understand that my privilege to enter all Duane Reade stores is revoked. I was told if I reentered any of these stores, I could be arrested for the crime of trespass pursuant to Section 140.10 [of] the New York State Penal Law.” A.105; T.99. Mr. Cornelius had not signed this trespass notice. Id. The prosecution also had Delacruz read to the jury similar contents of the trespass noticed dated May 20, 2004,3 and the trespass notice dated August 6, 4From the August 6, 2004, trespass notice, he read, “I Austin Cornelius understand my privilege to enter all Duane Reade stores is revoked. I was told that if I reenter any of these stores, I could be arrested for the crime of trespass pursuant to Section 140.10 of the New York state Penal Law . . .” A.108; T.102. The relevant portion of the trespass notice as entered into evidence read, “I, Austin Cornelius, understand that my privilege to enter all Duane Reade stores is revoked. I was 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.” A.199; Ex.6A. 5See, e.g., A.195; A.197; A.199; Ex.4 (witnessed by Dario Delacruz and Jerryl Cumberbatch); Ex.5A (witnessed by two individuals); Ex.6A (“PO B Giordano” was “second witness”). - 9 - 2004.4 A.107-08; T.101-02. Both of those notices bore the signature “Austin Cornelius.” Id. Once the redactions were removed, the notices also included narratives detailing the alleged conduct that led to their issuance, as well as the names of witnesses to their issuance.5 See A.195; A.197; A.199; Ex.4 (“Mr [sic] Austin was observed removing and concealing 55 Visine inside a shopping bag then attempting leaving the store without paying.”); Ex.5A (“Individual was observed removing and conceal [sic] 33 boxes of Visine and attempted to leave store without paying.”); Ex.6A (“Austin Cornelius was observed entering The Duane Reade on 485 Lexington Avenue. Austin Cornelius was then observed concealing store merchandise.”) Delacruz also described his version of the charged incident. Delacruz stated that Mr. Cornelius came into the store. A.108; T.102. He saw Mr. Cornelius “going around the store looking” and then starting to conceal disposable cameras - 10 - in his backpack. A.108-09; T.102-03. Delacruz claimed that he observed this on “[v]ideo surveillance” in an office. A.109; T.103. He approached Mr. Cornelius and told him that he knew he had cameras in his backpack. Id. Mr. Cornelius “said, no problem, you know, he handed it over.” Id. Delacruz took the backpack, and saw “several disposa[ble] Kodak cameras” inside. A.110; T.104. When Delacruz told Mr. Cornelius that he had to handcuff him, Mr. Cornelius verbally refused and was moving his hands. Id. Delacruz nonetheless put one handcuff on him. A.111; T.105. As Mr. Cornelius continued to complain, Delacruz grabbed him and “went over his shoulder and neck and tried to pull him down.” Id. A recording of video surveillance from the time of the incident, contained in three separate digital files, was introduced through Delacruz. A.120-26; T.114-20; People’s Exhibit Number 3 (“Ex.3”). Delacruz stated that it was “an exact recording” of the events of that day, A.117; T.111, and the “exact video” that he had seen on that day. A.119; T.113. The video did not show Mr. Cornelius putting any items in a backpack. Ex.3. It instead showed Mr. Cornelius being stopped while still in an aisle and then kicked repeatedly after being pulled to the ground by two men. Id. - 11 - Delacruz stated it took him “a little while” to bring Mr. Cornelius to the floor, but eventually Delacruz, Mr. Cornelius, and Assistant Store Manager Jamie Noriega all fell to the floor. A.112; T.106. After having been brought to the floor, Mr. Cornelius was “like scratching real, real, real, bad like.” Id. Delacruz claimed that he “told Jamie like I was noticing a lot of pain,” id., that he was bleeding from several deep scratches, and that Mr. Cornelius had hurt his eye, which was “like red.” A.113; T.107. Mr. Cornelius was able to get away, and Delacruz ran after him. Id. While outside the store, Mr. Cornelius “swang [sic] at” Delacruz with the hand that had been handcuffed, and the handcuff cut Delacruz on the side of the head. Id. Delacruz kept “running after him” until Mr. Cornelius went down into a subway station, and Delacruz lost sight of him. A.115; T.109. The jury was shown no medical records, photographs, or physical evidence of his purported injuries. Dario Delacruz: Cross-Examination During cross-examination, as in his grand jury testimony, Delacruz stated that he saw Mr. Cornelius place merchandise “inside [his] backpack.” A.133; T.127; see also A.131; A.134; A.138; T.125; T.128; T.132. When asked which part of the tape showed Mr. Cornelius putting merchandise in his backpack, Delacruz responded that “[i]t’s not on this video.” A.135; T.129. He claimed that this direct evidence of the purported theft was contained on another, “longer” - 12 - video, not in court that day, which was never turned over to the prosecution with all the other videos of the incident. A.145-46; T.139-40. Jamie Noriega Assistant Store Manager Jamie Noriega described seeing Delacruz grab Mr. Cornelius and throw him to the ground by putting his arms around him and bringing him down. A.70; A.80; T.40; T.50. Then, Delacruz put his arm around Mr. Cornelius’ head, trying to bring it down to the floor to try to handcuff him. Id. He and Delacruz wrestled with Mr. Cornelius. Ex.3; A.81; T.51. Noriega also tried to “maybe like give him a kick to see if anything happened,” but it was “like me kicking a wall.” A.81; T.51. Noriega and Delacruz “tried to pull his shirt off,” and then Noriega “pull[ed] his pants down,” but Mr. Cornelius left the store. A.82; T.52. Noriega was asked what a trespass notice was. A.84; T.54. He stated, “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.” Id. Darryl Ng Police Officer Darryl Ng testified solely about Molineux evidence, describing events that had occurred on January 30, 2009, leading up to the arrest of Mr. Cornelius for petit larceny from a Duane Reade store. A.52-56; T.27-31. - 13 - In particular, he followed Mr. Cornelius into two Duane Reade stores and witnessed Mr. Cornelius carrying a plastic bag that was later discovered to contain approximately 150 toothbrushes. A.54-56; T.29-31. The prosecutor asked Officer Ng what a trespass notice was. A.56; T.31. He testified that someone who had signed one was, if in the same store again, “in violation of trespass, which [wa]s an arrestable offense, and other charges if [he was] caught stealing in those stores again.” A.56-57; T.31-32. Immediately following Mr. Cornelius’ apprehension, Officer Ng investigated whether Duane Reade had previously given him a trespass notice. A.57; T.32. He was informed that Duane Reade had no such record. Id. D. The Defense Case at Trial Austin Cornelius testified at trial. He stated that his intent in Duane Reade on the day in question was to shop. A.153; T.155. He had gathered together the items that he wanted to buy but had not put them in a bag. A.153-54; T.155-56. Given the chance, he would have paid for them. A.180; T.182. However, two men approached him and started grabbing him, pulling on him, and tugging on him. A.159; T.161. They stated that they wanted to handcuff him. Id. He asked to see their identification first, but neither presented identification. Id. Mr. Cornelius denied doing anything wrong and told them to call the police. Id. He said he would allow the police to handcuff him if the two men felt he violated any 6The prosecutor recalled Officer Ng on rebuttal and introduced a prisoner pedigree card that he had filled out on January 30, 2009. A.65; A.67-68; T.191; T.193-94. The card indicated that Mr. Cornelius left Officer Ng’s custody with twenty dollars. A.68; T.194. - 14 - laws. Id. He also offered to be searched. A.160; A.177; T.162; T.179. Even though Mr. Cornelius was being cooperative, one of the men threw his arm around Mr. Cornelius’ neck and started choking him, they put him to the ground, and someone then started kicking him and trying to pull his pants down. A.177; T.179. They still had not identified themselves. Id. Once the kicking started, he felt he was being assaulted and had to defend himself. Id. Mr. Cornelius stated that the total price of the items that he intended to purchase was approximately forty-five dollars. A.166; T.168. He testified that he had over a hundred dollars on him that day, from working with his stepfather.6 Id. Mr. Cornelius could not remember whether he went anywhere between leaving Officer Ng’s custody at about 9:00 p.m. and appearing in the video surveillance at about 9:25 p.m. A.176; T.178. On direct examination, Mr. Cornelius admitted that he had prior arrests for shoplifting and trespassing at Duane Reade, and that he had previously pled guilty to a burglary involving Duane Reade. A.160; T.162. Although he had made mistakes in the past, there were other times that he was wrongfully accused. A.161-62; T.163-64. - 15 - On cross-examination, the prosecutor asked Mr. Cornelius about the three trespass notices that had been admitted into evidence. Of the signatures on the two 2004 trespass notices, Mr. Cornelius said that one of them didn’t really look like his. A.171; T.173. He believed that the other may have been his signature because it looked “a little bit more similar to [his] handwriting.” Id. However, he did not remember signing either of those trespass notices, which were issued many years earlier, and he did not remember the third one that was signed by Delacruz. A.172; T.174. Mr. Cornelius did not believe that he was trespassing in Duane Reade. A.172-73; T.174-75. The prosecutor also questioned Mr. Cornelius about his convictions for petit larceny, trespass, and burglary. A.171; A.175-76; T.173; T.177-78. She elicited that the petit larceny conviction had resulted from his arrest by Officer Ng. A.176; T.178. The prosecutor also elicited that the trespass and the burglary convictions had occurred in Duane Reade stores. A.171-73; T.173-75. E. The Prosecution’s Closing Argument The prosecutor emphasized Mr. Cornelius’ history with Duane Reade in her closing. She reminded the jury that the charged incident had occurred in Duane Reade, and she stated that Mr. Cornelius had entered “two different Duane Reades” earlier that day. A.182-83; T.216-17. She also noted that “[y]ou heard a - 16 - lot of testimony in this case about trespass notices and what trespass notices are,” and she then proceeded to refer to all three of them. A.187-88; T.228-29. F. The Jury Charge In its final instructions, the court addressed the fact that evidence had been introduced relating to Mr. Cornelius’ prior criminal conduct. A.190; T.254. Yet the court failed to provide a clear and accurate demarcation of what constituted Molineux versus Sandoval evidence. Id. The court indicated that there was “evidence in this case that on another occasion the defendant engaged in criminal conduct and/or was convicted of a crime or crimes,” and that it was offered “on the question of intent, identity and absence of mistake or accident.” Id. This statement gave no indication that any of the evidence of prior criminal conduct or convictions could not be considered on the question of “intent, identity and absence of mistake or accident.” Id. Then, the court proceeded to state that Mr. Cornelius’ convictions could only be considered for the purpose of evaluating “the credibility of the defendant’s testimony.” Id. In addition, the court gave a misleading rendition of the convictions about which the jury had heard. The court stated that the jury had heard about “a September 6th conviction for assault.” Id. It had heard nothing about such a conviction. - 17 - G. The Verdict and the Sentencing Proceeding The jury convicted Mr. Cornelius of burglary in the second degree. A.192; T.286. The court imposed a sentence of ten years’ imprisonment and five years of post-release supervision. A.194; S.10. H. The Direct Appeal On appeal to the Appellate Division, First Department, Mr. Cornelius argued, inter alia, that the admission of two trespass notices containing testimonial statements by absent witnesses whom he could not cross-examine deprived him of his right to confrontation under the United States and New York Constitutions. The Appellate Division denied Mr. Cornelius’ Confrontation Clause claim on the merits. A.3-4; People v. Cornelius, 89 A.D.3d 595, 595-96 (1st Dep’t 2011) (“The trespass notices barring defendant from entering a chain of drugstores were properly admitted as business records and did not violate defendant’s right of confrontation. These documents were not created in order to memorialize witness testimony, but for business purposes.”) (internal citations and quotation marks omitted), lv. granted, 18 N.Y.3d 993 (2012). Mr. Cornelius also argued that the trial court’s Molineux and Sandoval rulings constituted an abuse of discretion because the cumulative impact of the excessive quantity of prior bad acts evidence, which was incredibly similar to the charged crime, could only have been considered for improper propensity purposes. - 18 - The Appellate Division held that these rulings were a proper exercise of discretion, and that Mr. Cornelius “failed to preserve his argument that the court conflated its Sandoval and Molineux determinations.” A.2-3; Id. at 595. The Appellate Division affirmed Mr. Cornelius’ conviction but reduced his sentence, in the interest of justice, from ten years’ imprisonment to seven years. A.2; A.5; Id. at 596-97. - 19 - ARGUMENT POINT I TWO TRESPASS NOTICES WERE IMPROPERLY INTRODUCED AT AUSTIN CORNELIUS’ TRIAL IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO CONFRONTATION BECAUSE THE TRESPASS NOTICES WERE AKIN TO FORMAL AFFIDAVITS AS THEY WERE SIGNED, DATED, AND WITNESSED, THEY CONTAINED DIRECT ACCUSATIONS OF CRIMINAL ACTIVITY, AND THEY WERE PREPARED IN CONTEMPLATION OF USE IN A CRIMINAL PROSECUTION. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The New York Constitution also provides a right of confrontation, in “virtually identical language.” People v. Bradley, 8 N.Y.3d 124, 126 (2006); see N.Y. Const. art. I, § 6. The Confrontation Clause “applies to ‘witnesses’ against the accused – in other words, those who ‘bear testimony.’” Crawford v. Washington, 541 U.S. 36, 51 (2004) (citation omitted). It bars the introduction of “testimonial” statements offered for their truth by a non-testifying declarant, unless the declarant is unavailable and the accused had a prior opportunity to cross-examine the declarant. Id. at 54, 59 n.9. The Sixth Amendment right to confrontation is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 401 (1965). The prosecution bears the burden of proving the - 20 - constitutional admissibility of a statement in response to a Confrontation Clause challenge. See Idaho v. Wright, 497 U.S. 805, 816 (1990), abrogated on other grounds by Crawford, 541 U.S. at 67-68; Ohio v. Roberts, 448 U.S. 56, 74-65 (1980), overruled on other grounds by Crawford, 541 U.S. at 67-68. In this case, Mr. Cornelius’ right of confrontation was violated by the admission into evidence of two trespass notices, which contained testimonial hearsay in the form of both narratives by absent witnesses, detailing his alleged prior shoplifting, and statements by absent witnesses about the fact that Mr. Cornelius could, or would, be arrested for trespass, under New York Penal Law § 140.10, if he returned to that store. These statements were entered for their truth. Thus, notwithstanding the admission of the trespass notices as business records, these statements fell within the ambit of the Confrontation Clause. Since they belonged to the core class of testimonial statements as laid out by the Supreme Court, as well as displaying all of the indicia of testimoniality laid out by this Court, they violated Mr. Cornelius’ rights under that clause. A. Statements Within Each of Two Trespass Notices Violated the Confrontation Clause Because They Were Testimonial. i. The Supreme Court Laid Out Various Formulations of the Core Class of Testimonial Statements in Crawford. In Crawford, the Supreme Court held that the admission of testimonial hearsay, in the absence of a prior opportunity for cross-examination, violated the 7Other states’ highest courts have adopted this third formulation. See, e.g., State v. Stahl, 111 Ohio St. 3d 186, 196 (Ohio 2006) (adopting the “objective witness” test); State v. Mechling, 633 S.E.2d 311, 321 (W.Va. 2006) (same); Derr v. State, 422 Md. 211, 235-36 (Md. 2011) (same); Medina v. State, 122 Nev. 346, 354 (Nev. 2006) (same). - 21 - Confrontation Clause. Crawford, 541 U.S. at 59. Although the Court did not define the entire universe of testimonial hearsay, it provided “[v]arious formulations” of their “core class.” Id. at 51. The first formulation was “ex parte in-court testimony or its functional equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” Id. (internal quotation marks omitted). The second was “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions.” Id. at 51-52 (internal quotation marks and citations omitted). The third was “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”7 Id. at 52 (internal quotation marks omitted). Whereas other Supreme Court jurisprudence has discussed a “primary purpose” test for determining whether hearsay is testimonial, see, e.g., Davis v. Washington, 547 U.S. 813, 822 (2006) (inquiring whether the primary purpose of the interrogation was to establish or prove past events potentially relevant to later 8Even in the interrogation context, the “primary purpose” test has been the object of scholarly criticism. See Richard D. Friedman, Crawford, Davis, and Way Beyond, 15 J.L. & Pol’y 553, 560 (2007) (“Labeling one purpose after the fact as primary seems to be a rather arbitrary exercise – and thus the test is an invitation to manipulation that will enhance the chances that the evidence will be received.”) (citing Davis, 126 S. Ct. at 2284-85 (Thomas, J., dissenting)). - 22 - criminal prosecution), this test is most appropriately applied in the context of police interrogations. See id. at 823 n.1 (“[o]ur holding refers to interrogations because . . . the statements in the cases presently before us are the products of interrogations”).8 The relevant portion of Davis laid out the difference between “testimonial” and “nontestimonial” in the context of “police interrogation,” in a way adjudged “suffic[ient] to decide” the cases before the Court. Id. at 822 (stating aim of deciding the cases before the Court rather than attempting to provide “an exhaustive classification” of all conceivable statements as either testimonial or nontestimonial). When Justice Ginsburg later attempted to broaden the applicability of the “primary purpose” test from the interrogation context to a more exhaustive classification, she could not garner a majority to support that formulation. Bullcoming v. New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011) (“To rank as ‘testimonial,’ a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution”) (internal citations and quotation marks omitted). The same happened to Justice Alito, who was unable to garner a majority of votes for his rather different “primary purpose” test, - 23 - in Williams v. Illinois, No. 10-8505, 2012 WL 2202981, at *19 (Jun. 18, 2012) (Alito, J., plurality opinion) (“primary purpose of accusing a targeted individual of engaging in criminal conduct”); id. at *36 (Thomas, J., concurring in judgment) (describing plurality’s “new primary purpose test” as a “reformulated version”); id. at *49 (Kagan, J., dissenting) (“Where [the plurality’s] test comes from is anyone’s guess.”). Notwithstanding recent confusion over the appropriate standard for determining the breadth of testimonial hearsay under the Confrontation Clause, Crawford’s core class of testimonial statements are certainly encompassed. Because trespass notices fall within the various formulations of that core class, they must be introduced through a live witness who was involved in their issuance. ii. Both Trespass Notices Contain Statements that Fall Within Crawford’s Formulations of the Core Class of Testimonial Statements. The first formulation, namely “ex parte in-court testimony or its functional equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” embraces the contents of the trespass notices. Crawford, 541 U.S. at 51. The trespass notices included material – in the form of detailed allegations of past - 24 - criminal conduct – that was the “functional equivalent” of in-court testimony, as became clear when Delacruz’s in-court testimony included the same kind of detailed recitation of prior criminal conduct that was contained in the disputed trespass notices. See Crawford, 541 U.S. at 51; see also Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009) (documents labeled “certificates of analysis” were quite plainly “affidavits”). The narratives detailing prior criminal conduct involved a written recitation of criminal allegations. Thus, they were “functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.” Melendez-Diaz, 129 S. Ct. at 2532 (internal quotation marks omitted). Moreover, this was material that the declarants – Duane Reade employees or police officers – would “reasonably expect to be used prosecutorially,” Crawford, 541 U.S. at 51, as was shown by the fact that two Duane Reade employees and a police officer testified about the law enforcement consequences of trespass notices. T.31-32 (Officer Ng); T.54 (Noriega); T.85 (Delacruz). As such, it was simply “a weaker substitute for live testimony,” which the Confrontation Clause proscribes. Davis, 547 U.S. at 828 (quoting United States v. Inadi, 475 U.S. 387, 394 (1986)). The second formulation, which refers to “formalized testimonial materials,” also embraces the statements within these trespass notices, which were signed and dated not only by the individual issuing them, but also by a second witness, and 9Justice Thomas is the lone voice on the United States Supreme Court for ascribing constitutional significance to this factor. See Williams, 2012 WL 2202981, at *34 (Thomas, J., concurring in judgment) (“report lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact”); id. at *40 (Kagan, J., dissenting) (“no other Justice joins his opinion or subscribes to the test he offers”). - 25 - contained narratives of alleged criminal conduct. A.197; A.199; Ex.5A; Ex.6A. This formulation, like the first, specifically mentions “affidavits” as falling within the core class of testimonial statements. The trespass notices were the functional equivalent of affidavits. Crawford, 541 U.S. at 52; see Melendez-Diaz, 129 S. Ct. at 2532 (finding Confrontation Clause violated by documents labeled “certificates” that were “quite plainly affidavits,” that is “‘solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact.’”) (quoting Crawford, 541 U.S. at 51). Indeed, the only difference between the trespass notices and affidavits is that the notices were not sworn, which is a distinction that is not of constitutional significance.9 Indeed, the fact that the trespass notices were unsworn makes them less reliable than a formal affidavit, thus rendering cross-examination even more necessary. Finally, these were “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52. Trespass notices such as these include hearsay statements from absent witnesses that the recipients were formally put on notice of the legal consequences thereof – specifically, revocation - 26 - of permission to enter the premises – and the criminal consequences that may attend a disregard of that revocation. Those criminal consequences are pinned down by recitation of the precise Penal Law charge – “section 140.10” – under which future litigation will be pursued. A.197; A.199; Ex.5A; Ex.6A. Thus, the individuals who issue trespass notices would reasonably believe that the notice would be available for use at a subsequent criminal trials. Indeed, when asked about the purpose of trespass notices, every witness for the prosecution immediately attested to their use in future criminal prosecutions. Both Noriega and Delacruz indicated their awareness that these documents would central to a criminal arrest and prosecution. In response to a question about what a trespass notice was, Noriega turned immediately to its criminal consequences, stating that “[w]e 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.” A.84; T.54. Similarly, Delacruz stated that those given a trespass notice “lose all rights to reenter any other Duane Reade store, and if they do come back, they could be arrested.” A91; T.85. Moreover, Officer Darryl Ng – a law enforcement agent – stated that a person who entered a store after receiving a trespass notice was guilty of the “arrestable offense” of trespass and “other charges if . . . caught stealing in those stores again.” A.56-57; T.31-32. Moreover, upon returning to the precinct - 27 - after Mr. Cornelius’ arrest, one of the first steps in his investigation was to ascertain if Mr. Cornelius had received a trespass notice in the past. A.57; T.32. Thus, both Duane Reade employees and a law enforcement officer testified that a central purpose of a trespass notice was to assist in future criminal prosecutions. It is far from clear which, if any, “primary purpose” test for determining whether hearsay is testimonial should apply in Mr. Cornelius’ case. See Williams, 2012 WL 2202981, at *36 (Thomas, J., concurring in judgment) (in situations where statements are given to police for more than one purpose, “primary purpose test gives courts no principled way to assign primacy to one of those purposes”). Indeed, the Supreme Court has not even settled on the appropriate formulation for a primary purpose test. Id. at *19 (Alito, J., plurality opinion) (“primary purpose of accusing a targeted individual of engaging in criminal conduct”); id. at *36 (Thomas, J., concurring in judgment) (“for a statement to be testimonial within the meaning of the Confrontation Clause, the declarant must primarily intend to establish some fact with the understanding that his statement may be used in a criminal prosecution”); id. at *49 (Kagan, J., dissenting) (“We have previously asked whether a statement was made for the primary purpose of establishing past events potentially relevant to later criminal prosecution – in other words, for the purpose of providing evidence.”) (internal quotation marks omitted). - 28 - Nonetheless, under the formulations enunciated in both Justice Alito’s plurality opinion and Justice Kagan’s dissent, the standard would be met here. The trespass notices were formalized statements, akin to affidavits, that were made with the express contemplation that they would be available for use at a subsequent criminal trial, involving Mr. Cornelius specifically, in order to provide evidence of past events. Every single witness whom the prosecution asked about the trespass notices specifically and unequivocally stated that they were prepared in contemplation of a future arrest. Moreover, the trespass notices themselves contained a narrative description of past criminal conduct and the specific penal law provision under which future charges could be brought. Thus, these formalized written documents are far removed from the responses to police questioning during ongoing emergencies at issue in Davis and Bryant. See Michigan v. Bryant, 131 S. Ct. 1143, 1166 (2011) (“situation is more similar, though not identical, to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford”); Davis, 547 U.S. at 827-28. Even though the trespass notices also served to provide notice that Mr. Cornelius’ license and privilege to enter Duane Reade had been revoked, a verbal statement would have sufficed to serve that purpose. Accordingly, it is clear that the primary purpose of these formalized records was to provide evidence for a future arrest and criminal prosecution should Mr. Cornelius ever return. - 29 - For the foregoing reasons, the trespass notices, which were admitted at trial in the absence of testimony by witnesses who were involved in their issuance, violated the Confrontation Clause under the legal standards laid out by the Supreme Court. Accordingly, their admission at Austin Cornelius’ trial was error. iii. In Cases Dealing with Scientific Procedures, this Court Laid Out Indicia of Testimoniality. In addition to the tests laid out by the United States Supreme Court, this Court has looked to “indicia of testimoniality.” People v. Rawlins, 10 N.Y.3d 136, 151 (2008) (“Davis reminds us that the inquiry is an objective one under the circumstances, an approach that necessarily must account for various indicia of testimoniality beyond the declarant’s reasonable expectations”). Those indicia were articulated within the context of “reports of scientific procedures.” People v. Freycinet, 11 N.Y.3d 38, 41 (2008) (citing Rawlins); see Rawlins, 10 N.Y.3d at 156 (“[F]acts and context are essential. The question of testimoniality requires consideration of multiple factors, not all of equal import in every case.”). The indicia include “the extent to which the entity conducting the procedure is an arm of law enforcement; whether the contents of the report are a contemporaneous record of objective facts, or reflect the exercise of fallible human judgment; the question – closely related to the previous two – of whether a pro-law-enforcement bias is likely to influence the contents of the report; and whether the report’s 10Melendez-Diaz has thrown some doubt on the continuing viability of the last of these indicia. Compare Melendez-Diaz, 129 S. Ct. at 2533-34 (rejecting idea that only statements which “directly accuse” a defendant of wrongdoing are subject to Confrontation Clause, and rejecting the concept of witnesses who are “helpful to the prosecution, but somehow immune from confrontation”), with Freycinet, 11 N.Y.3d at 41 (characterizing one of the indicia as “whether the report’s contents are directly accusatory in the sense that they explicitly link the defendant to the crime”); see also Williams, No. 10-8505, 2012 WL 2202981, at *36-38, *49 (Jun. 18, 2012) (majority of Justices rejected plurality’s focus on whether primary purpose of statement was to accuse a targeted individual) ((Thomas, J., concurring in judgment, and Kagan, J., dissenting); Rawlins, 10 N.Y.3d at 156 (“statements can often be testimonial where their tendency to inculpate the defendant is only indirect”). - 30 - contents are directly accusatory in the sense that they explicitly link the defendant to the crime.”10 Freycinet, 11 N.Y.3d at 41 (internal quotation marks and citations omitted); see also People v. Brown, 13 N.Y.3d 332, 340 (2009) (citing Freycinet). iv. Both Trespass Notices Contain Statements that Display Each of this Court’s Indicia of Testimoniality. If this Court were to apply the Rawlins/Freycinet indicia of testimoniality standard, it would find each of those indicia satisfied. The relevance of the first of the indicia – the “extent to which the entity conducting the procedure is an arm of law enforcement” – is highlighted on the face of the trespass notices, by the invocation of a specific provision of the Penal Law. Freycinet, 11 N.Y.3d at 41. In addition, Noriega, Delacruz, and Officer Ng testified about the law enforcement consequences of these documents. See A.56- 57; A.84; A.91; T.31-32 (Officer Ng), T.54 (Noriega), T.85 (Delacruz). Finally, the signature of “PO B Giordano” on one of the trespass notices reveals that a police officer was not just present at the time of the completion of the trespass 11By contrast, in Liner, a case in which the admission of trespass notices was upheld, there does not appear to have been such involvement of law enforcement. People v. Liner, 33 A.D.3d 479, 479 (1st Dep’t 2006) (trespass notices “were not prepared by or on behalf of law enforcement”); see also Liner v. Artus, No. 08 Civ. 5886(GEL), 2008 WL 5114485 (S.D.N.Y. Dec. 5, 2008) (denying pro se habeas petition). Although potentially distinguishable on this ground, Mr. Cornelius nonetheless submits that Liner was wrongly decided. - 31 - notice, but was directly involved in producing, administering, and witnessing at least one of the trespass notices, adding through his signature the imprimatur of law enforcement.11 See A.199; Ex.6A; Rawlins, 10 N.Y.3d at 147 (“Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse”) (quoting Crawford, 541 U.S. at 56 n.7). The second of the indicia – “whether the contents of the report are a contemporaneous record of objective facts or reflect the exercise of fallible human judgment” – also militates in favor of a finding of testimoniality. Freycinet, 11 N.Y.3d at 41. Indeed, trespass notices are more akin to accusatory instruments than “routine reflections of day-to-day operations,” such as a business’s inventory and payroll or even a DNA report that was prepared by an independent laboratory following established procedures for scientific testing. Rawlins, 10 N.Y.3d at 150. The fact that the narratives admitted were not a contemporaneous record of objective facts is revealed by the fact that, in at least one case, the trespass notice was not completed until Officer Giordano had arrived to oversee and participate in 12As regards both the identification of Officer Giordano as Mr. Cornelius’ arresting officer, and the incident date, this Court is permitted to take judicial notice of the records of the Office of Court Administration. See Long v. State, 7 N.Y.3d 269, 275 (2006) (taking judicial notice of court records); see also Reed v. Federal Ins. Co., 71 N.Y.2d 581, 586 n.2 (1988) (taking notice of lack of criminal prosecution for arson); Bd. of Ed. of Belmont Cent. Sch. Dist. v. Gootnick, 49 N.Y.2d 683, 687 (1980) (“judicial notice may be taken of some official documents by appellate courts”); Siwek v. Mahoney, 39 N.Y.2d 159, 163 n.2 (1976) (taking judicial notice of data from public records); Brandes Meat Corp. v. Cromer, 146 A.D.2d 666, 667 (2d Dep’t 1989) (taking judicial notice of matters of public record). - 32 - the production of the trespass notice. See A.199; Ex.6A. It is more startlingly revealed by court records illustrating that, despite Delacruz’s assertion that trespass notices were produced at the same time as the events described, the August 6, 2004, trespass notice was dated seven days after Mr. Cornelius’ alleged transgression. See A.199-200; Ex.6A; Criminal Record Information and Management System, Docket Number 2004NY058252 (“INCIDENT DATE: 7/30/2004”).12 Thus, what was detailed was the very antithesis of an “ongoing emergency.” Davis, 547 U.S. at 822. The third of the indicia – “whether a pro-law-enforcement bias is likely to influence the contents of the report” – is satisfied here. Freycinet, 11 N.Y.3d at 41. It was the job of Duane Reade store detectives to police Duane Reade for violations of the law; moreover, it was not just the case that pro-law enforcement bias was likely to influence the contents, but that a member of law enforcement was present to act as signatory and witness to the contents. See A.199; Ex.6A. - 33 - The last of the indicia – “whether the report’s contents are directly accusatory in the sense that they explicitly link the defendant to the crime” – applies with full force. Freycinet, 11 N.Y.3d at 41 (internal quotation marks omitted). Here, the statements were “directly accusatory,” in that the narratives detailing prior criminal conduct outlined past criminal wrongdoing in which Mr. Cornelius was alleged to have participated, which was used as evidence to prove the current charges. See Rawlins, 10 N.Y.3d at 148 (statement was accusatory where purpose was to “nail down the truth about past criminal events”). The statements detailing legal consequences provided evidence that his entry into the store was knowingly unlawful, and that he intended to commit a crime therein. See People v. Pacer, 6 N.Y.3d 504, 510 (2006) (Department of Motor Vehicles assertion that ordinary mailing procedures were carried out in defendant’s case was a “direct accusation of an essential element of the crime, that defendant knew or should have known of the revocation” of his license). Thus, trespass notices are markedly different than, for example, DNA reports. Rawlins, 10 N.Y.3d at 153 (“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”). - 34 - B. Respondent’s Previous Arguments that the Confrontation Clause Does Not Apply Are Unavailing. i. Admission of the Trespass Notices as Business Records Does Nothing to Lessen the Confrontation Clause’s Protections. Contrary to Respondent’s argument below, See Respondent’s Appellate Division Brief (hereinafter “Resp. Br.”) at 51, the fact that the trespass notices at issue were admitted as business records does not insulate the statements contained therein from Confrontation Clause scrutiny. Dicta in Crawford has tempted some lower courts to assert that documents admitted as business records cannot violate the Confrontation Clause. Crawford, 541 U.S. at 56; see, e.g., State v. Bellerouche,129 Wash. App. 912 (Wash. Ct. App. 2005) (“Under Crawford, business records are specifically identified as nontestimonial hearsay that does not implicate the Sixth Amendment”). However, subsequent case law from both the Supreme Court and this Court has clarified that the two inquiries are distinct. See Melendez-Diaz, 129 S. Ct. at 2540 (“Whether or not they qualify as business or official records, the analysts’ statements here . . . were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment”); Freycinet, 11 N.Y.3d at 41 (no “absolute rule” that documents within the business records exception are never testimonial”); Rawlins, 10 N.Y.3d at 150-52; Pacer, 6 N.Y.3d at 509-10; see also Peter Nicolas, But What if the Court Reporter is Lying? The Right to Confront Hidden Declarants Found in 13A majority of the Justices in Williams rejected the claim that the statements were introduced for a purpose other than their truth. Williams, 2012 WL 2202981, at *31 (Thomas, J., concurring in judgment) (“no plausible reason for the introduction of Cellmark’s statements other than to establish their truth”); id. at *44 (Kagan, J., dissenting) (“But five Justices agree, in two opinions reciting the same reasons, that this argument has no merit: Lambatos’s statements about Cellmark’s report went to its truth, and the State could not rely on her status as an expert to circumvent the Confrontation Clause’s requirements.”). - 35 - Transcripts of Former Testimony, 2010 B.Y.U. L. Rev. 1149, 1171 (2010) (even if a document is “typically admissible as a business or official record, that does not as Melendez-Diaz teaches, exempt it from scrutiny under the Confrontation Clause to the extent that it is testimonial.”). ii. The Trespass Notices Were Offered for Their Truth. Contrary to Respondent’s argument below, see Resp. Br. at 46, 47, 55 n.13, this is not a situation where the statements at issue were used “for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9 (no Confrontation Clause bar to admission of such statements). The trespass notices were introduced, pursuant to Molineux, as direct evidence of Mr. Cornelius’ intent, the unlawfulness of his entry, and his knowledge thereof, which were disputed elements that the prosecution was required to prove at trial. Thus, unlike Williams, this is not a case where the trespass notices were arguably introduced for a purpose other than their truth.13 Moreover, courts and commentators are appropriately skeptical about prosecutorial allegations that out-of-court statements were admitted for purposes 14One commentator, proposing that “testimonial” be defined as including “all accusatory hearsay, i.e. hearsay that tends to establish in any way an element of the crime or the identification of the defendant,” explained that he included the phrase “tends to establish in any way” precisely in order to prevent this kind of end-run. Michael D. Cicchini, Dead Again: The Latest Demise of the Confrontation Clause, 80 Fordham L. Rev. 1301, 1321 & n.37 (2011) (“Even with a trial-based focus, a prosecutor can claim to offer accusatory statements not to prove the truth of the matter asserted, but rather to show why the police investigated, and ultimately arrested, the defendant. . . Obviously, this tactic is just another end around the Constitution and sometimes courts will see through the form and focus on the substance.”) (continued...) - 36 - other than their truth, emphasizing the risk of a significant end-run around Crawford’s protections, and the need to police such a risk. See People v. Goldstein, 6 N.Y.3d 119, 128 (2005) (in finding Confrontation Clause violation, mentioning the risk that an “end-run around a Constitutional prohibition” would be effected through the “factually implausible, formalist claim” that the testimony was not being offered for its truth) (quoting Kaye et al., The New Wigmore: Expert Evidence § 3.7, at 19 (Supp. 2005)); People v. Fackelman, 489 Mich. 515, 561 n.10 (2011) (refusing to require juries “to engage in the mental gymnastics necessary” to conclude that, as the prosecution asserted, an expert opinion was coming in for purposes other than its truth); United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004), cited by United States v. Maher, 454 F.3d 13, 22 (1st Cir. 2006) (routinely allowing accusatory statements into evidence on the basis that they are coming in not for their truth but to explain why the police investigated a particular suspect “would eviscerate the constitutional right to confront and cross-examine one’s accusers”).14 14(...continued) (citing Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011)). - 37 - Such skepticism and policing is necessary here. The court gave Mr. Cornelius’ jury no limiting instruction as regards either set of statements, and the jurors were thus free to consider them for their truth. See Sanabria v. State, 974 A.2d 107, 120 (Del. 2009) (Confrontation Clause violated where, absent a limiting instruction, disputed statement “could have been considered by the jury for the truth of the assertion”). Indeed, if the contents of the trespass notices were not accepted as truthful, the notices would have possessed no probative value. With regard to the narratives detailing past criminal conduct, there is no plausible purpose to their admission other than for the truth of those narratives. The prosecution alleged that it needed the redactions stripped away from these narratives because the jury would otherwise “wonder” what was hidden. T.93. As shown below, this allegation was implausible. Rather, the detailing of multiple prior bad acts of Mr. Cornelius – the “truth” of what Mr. Cornelius had done before – formed a key part of the prosecution’s strategy of establishing that Mr. Cornelius had shoplifted from Duane Reade on many prior occasions. Similarly, with the statements detailing legal consequences, they were relevant only if they were true. If they were offered to establish that Mr. Cornelius’ return to Duane Reade was unlawful, they served that purpose only if - 38 - they were true, since otherwise his return was not unlawful; if they were offered to establish that Mr. Cornelius knew that a return would be unlawful, again they served that purpose only if they were true, since “[w]hat is known must be true, of course.” Eric A. Johnson, Knowledge, Risk, and Wrongdoing: The Model Penal Code’s Forgotten Answer to the Riddle of Objective Probability, 59 Buff. L. Rev. 507, 574 & n.273 (2011) (emphasis in original) (citing Alfred J. Ayer, The Problem of Knowledge 31 (1956) (defining knowledge to include, among others, a requirement “that what is known should be true”)). Indeed, the prosecution offered no non-truth basis for their introduction, even in the face of defense counsel’s assertion of Mr. Cornelius’ confrontation rights. See Langham v. State, 305 S.W.3d 568, 580 (Tex. Crim. App. 2010) (“[T]he State’s actual use of the out-of-court statements at the appellant’s trial was inconsistent with its appellate claim that they were not offered for the truth of the matter asserted. The State made no such representation when it offered the statements, even though it would have been responsive to the appellant’s hearsay and Confrontation Clause objections.”) Thus, not only could these two sets of statements have readily been considered for their truth, see Sanabria, 974 A.2d at 120, that was their only plausible use. - 39 - iii. The Trespass Notices Were Statements of Absent Witnesses and not Admissions. Contrary to Respondent’s argument below that the trespass notices merely contained admissions, or adopted admissions, of Mr. Cornelius, see Resp. Br. at 45-47, they in fact contained statements of just the type that the Confrontation Clause was designed to exclude – statements by absent witnesses. With regard to the narratives detailing past criminal conduct, there appears to be no possible argument that the statements constituted any sort of admission, given that they detailed in the third person Mr. Cornelius’ alleged prior criminal activity. As for the statements detailing legal consequences, while it is true that they were followed by a signature line, the signature affirmed what one had been “told” and not the truth of those statements. Rather than admissions or adopted admissions, these are statements of a third party because, “fairly read, they convey to the jury the substance of an out-of-court, testimonial statement of a witness who does not testify at trial.” Ocampo v. Vail, 649 F.3d 1098, 1109-10 (9th Cir. 2011); see Mason v. Scully, 16 F.3d 38, 42-43 (2d Cir. 1994) (“statement need not have accused the defendant explicitly but may contain an accusation that is only implicit”); Ryan v. Miller, 303 F.3d 231, 249 (2d Cir. 2002) (same); People v. Reid, 82 A.D.3d 1495, 1497 (3d Dep’t 2011), overruled on other grounds, Slip Op. 04272, 2012 WL 1986516 (2012) (“implication” within a question violated - 40 - Confrontation Clause); Colon v. Ercole, 09 Civ. 746(RLE), 2011 WL 1197656 (S.D.N.Y. Feb. 1, 2011) (Confrontation Clause covers “implicit statement[s]”), report and recommendation adopted, 09 Civ. 746(GBD), 2011 WL 1197658 (S.D.N.Y. Mar. 29, 2011); State v. Swaney, 787 N.W.2d 541, 554 (Minn. 2010) (holding that a trial court “violates the Confrontation Clause when it admits testimony that inescapably implies a nontestifying witness’ testimonial hearsay statement.”). In any event, no such signature was acknowledged by Mr. Cornelius with regard to the trespass notices at issue. He testified that he did not remember signing them; as for the signatures, he testified that one did not really look like his, while the other only looked more similar to his handwriting. See People v. Campney, 94 N.Y.2d 307, 313 (1999) (adoptive admission requires that one “understood and unambiguously assented to” the statements); People v. Robinson, 140 A.D.2d 644, 645 (2d Dep’t 1988) (“adoptive admission” violated Confrontation Clause). iv. Defense Counsel Did Not Open the Door to a Violation of Austin Cornelius’ Confrontation Clause Rights. Contrary to Respondent’s argument below, defense counsel did not open the door to the narratives detailing past criminal conduct that were contained within the trespass notices. Respondent’s Opposition to Austin Cornelius’ Leave - 41 - Application at 4. Defense counsel did not open the door to anything, much less to a violation of Austin Cornelius’ Confrontation Clause rights. The trial court’s responsibility in deciding “door-opening” issues is to consider “whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression.” People v. Massie, 2 N.Y.3d 179, 184 (2004). Inadmissible evidence does not become admissible because of questioning on an unrelated issue. See People v. Ramos, 70 N.Y.2d 639, 640-41 (1987) (prosecutorial use of one portion of defendant’s statement did not entitle defendant to admission of other portions that addressed unrelated matters). Here, defense counsel neither introduced any evidence nor made any argument that was “incomplete and misleading.” Massie, 2 N.Y.3d at 184. Rather, having made an unsuccessful Confrontation Clause objection to the introduction of the trespass notices at issue, he was laboring to demonstrate that Delacruz was an inappropriate witness through whom to introduce those trespass notices. A.96; T.90. Defense counsel’s questions had nothing to do with the substance of what Mr. Cornelius was alleged to have done. His questioning, well-founded in the constitutional concerns about absent witnesses that motivate the Confrontation Clause, aimed to show that Delacruz was an inappropriate 15This Court recently held in Reid that the door can be opened to evidence that would otherwise be inadmissible under the Confrontation Clause. Reid, Slip Op. 04272, 2012 WL 1986516 (2012). However, the Supreme Court has not yet addressed this issue. And other courts have held to the contrary. See United States v. Cromer, 389 F.3d 662, 679 (6th Cir. 2004); McBee v. Burge, 644 F. Supp. 2d 270, 282-83 (2009), aff’d, 395 F. App’x 762 (2d Cir. 2010). It is Mr. Cornelius’ position that Reid was not correctly decided. However, as argued supra, his case is plainly distinguishable because the door was not opened here. Moreover, even if defense counsel had created a misleading impression, the proper way to correct it in this case would have been to at least inquire into the availability of a witness to the event, not to introduce even more inadmissible evidence. - 42 - vehicle for the admission of trespass notices of whose administration Delacruz had no personal knowledge. See Com. v. Stone, 291 S.W.3d 696, 702 (Ky. 2009) (defense counsel did not open the door to hearsay statement, “especially at the expense of the important Constitutional values embedded in the Sixth Amendment.”). This was not a misimpression; it was the truth. The penalty administered was inapt and prejudicial, since it resulted in the exposure of allegations not about what Delacruz may or may not have witnessed, but on the separate issue of what some other absent witnesses alleged that Mr. Cornelius had done in violation of the law.15 See Ramos, 70 N.Y.2d at 640-41. C. The Erroneous Admission of Two Sets of Statements in Violation of the Confrontation Clause Was Not Harmless Beyond a Reasonable Doubt. Since Mr. Cornelius’ constitutional rights were violated, the prosecution would have to show that any error was harmless beyond a reasonable doubt. See Goldstein, 6 N.Y.3d at 129. This it cannot do. Not only did the prosecution need this evidence for three of the elements of the crime with which Mr. Cornelius was 16This is not a case where Mr. Cornelius admitted knowing that he was barred from Duane Reade. A.172-73; T.174-75. To the contrary, he denied any recollection of the trespass notice that Delacruz claimed to have given him, and he did not remember signing the other two. A.172; T.174. As to one, Mr. Cornelius testified that the signature did not “really look” like his. A.171; T.173. As to the other, he testified only that it may have been his because it “look[ed] a little bit more similar to [his] handwriting.” Id. - 43 - charged, but the defense was stymied, in a way that the Confrontation Clause abhors, from uncovering vital information through cross-examination. i. The Trespass Notices, Placed Before the Jury without Redactions or Limiting Instructions, Provided Great Benefit to the Prosecution, as Respondent Has Previously Admitted. The disputed trespass notices were vital to the prosecution’s efforts to establish the elements of knowledge, intent, and unlawful entry. See Resp. Br. at 33 (“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.”) Each of those elements was contested,16 and indeed, one prosecution witness had provided testimony that undermined the prosecution’s attempts to establish these elements. See A.57; T.32 (Officer Ng testified that, on the day of the alleged offense, he had searched for, but could not find, a Duane Reade trespass notice relating to Mr. Cornelius). - 44 - If the disputed trespass notices had not been admitted, the jury would have been able to consider only one, which was not signed by Mr. Cornelius, was not recollected by Mr. Cornelius, and which was supported and introduced only through the testimony of Delacruz who had been thoroughly impeached. In particular, Delacruz gave testimony about Mr. Cornelius putting items in a backpack that was unsupported by the video evidence shown at trial. A.109; T.103; Ex.3. When confronted with the fact that the video surveillance did not support his testimony, Delacruz appeared to invent a fourth video, which purportedly provided proof of a theft but was never turned over to the police with the three other decidedly less incriminatory videos. A.145; T.139. He did this despite having asserted earlier that the footage introduced at trial represented an “exact recording” of the events of that day and was the “exact video” that he had seen that day. A.117; A.119; T.111; T.113. Moreover, the video surveillance appeared to depict an unprovoked assault of Mr. Cornelius, which certainly provided Delacruz with a motive to testify that he witnessed incriminatory acts, whether or not they occurred, in order to justify his own actions as a proportionate response. Indeed, if the disputed trespass notices had not been admitted, the prosecution’s evidence with regard to unlawful entry would have rested on the 17See Resp. Br. at 55 (citing only evidence produced by Delacruz in support of its assertion that the trespass notices “were not the only evidence which demonstrated that defendant had entered the Duane Reade store unlawfully”); Respondent’s Opposition to Austin Cornelius’ Leave Application at 5 (same). - 45 - testimony of Delacruz, as the prosecution concedes.17 And it was not just that the rest of the prosecution’s evidence added nothing to the evidence derived from the trespass notices, but that some of the prosecution’s evidence actively contradicted it. See A.57; T.32 (Officer Ng’s search revealed no trespass notices for Mr. Cornelius). The prosecution admitted the importance of the trespass notices, both explicitly and implicitly. The explicit acknowledgment came in Respondent’s brief, which argued that three trespass notices were more helpful than one to the prosecution’s efforts to secure Mr. Cornelius’ conviction. Resp. Br. at 33. It is hard to square that concession with any assertion that the erroneous admission of the disputed trespass notices was, beyond a reasonable doubt, harmless to Mr. Cornelius. See Pacer, 6 N.Y.3d at 512 (inability of defendant to confront statement by Department of Motor Vehicles employee, which was “crucial to the People’s case,” violated Confrontation Clause). The implicit admission of their importance lay in the emphasis that the prosecution placed on the trespass notices at trial. The prosecutor promised in her opening statement that the jury would be “hearing a lot” about “something called a - 46 - trespass notice,” and would hear “different witnesses tell [them] what it means.” A.47; T.17. She kept her promise. The prosecutor elicited testimony about trespass notices from three witnesses. A.56-57; A.63; A.84-85; A.91-92; A.94-95; A.101; A.104-08; T.31-32, 38 (Officer Ng); T.54-55 (Noriega); T.85-86, 88-89, 95, 98-102 (Delacruz). In her closing argument, she noted that “[y]ou heard a lot of testimony in this case about trespass notices and what trespass notices are,” and then proceeded to refer to all three of them. A.187-88; T.228-29. It was clear through her request that Delacruz read into the record the statements embedded within them as to what Mr. Cornelius was told, and through her request that the trespass notices be admitted with the redactions removed, that she wanted the jurors to pay attention not only to the trespass notices as a whole but specifically to the hearsay material that the trespass notices contained. A.99; A.107-08; T.93; T.101-02. The harm to Mr. Cornelius was compounded by the fact that the trespass notices were made available to the jury without any restrictions on the use to which the jurors could put them. None of their contents were redacted, since the redactions had been stripped away in response to Mr. Cornelius’ attempts to indicate that Delacruz was inadequate as a witness; in addition, the judge provided no limiting instructions. Cf. People v. Cox, 63 A.D.3d at 627 (“the court minimized any prejudice by ordering the notices redacted to eliminate any - 47 - reference to the conduct that prompted them, and by charging the jury that the notices were not proof that defendant committed any crimes on prior occasions or had any propensity to commit crimes.”). In these circumstances, the prosecution cannot establish that, beyond a reasonable doubt, no harm was caused to Mr. Cornelius. Mr. Cornelius had requested that the number of prior trespass notices (and alleged bad acts) admitted be limited, and that the trespass notices be redacted. A.27; A.99-100; H.100; T.93-94. Each of those potential protections was denied. If the prosecution chooses to enter into evidence multiple trespass notices, containing statements by absent witnesses, then the prosecution must produce the witnesses that will transform this from an ex parte proceeding to a constitutional trial. See Bullcoming, 131 S. Ct. at 2716 (“when the State elected to introduce [the statement of a non-testifying expert], [that expert] became a witness [the defendant] had the right to confront.”). ii. Where These Statements Were Ripe for Cross-Examination, the Untested Introduction of the Trespass Notices Deprived Mr. Cornelius of Vital Areas of Inquiry, in Precisely the Way that the Confrontation Clause Prohibits. Just as the prosecution needed these ex parte witnesses in order to make out its case, so Mr. Cornelius needed the opportunity to question his absent accusers. There were many aspects of the prosecution’s evidence that were ripe for just the 18The record contains additional evidence that the trespass notice system involved something far from the methodical recordkeeping that Delacruz described. See T.32 (on the day of the alleged offense, Officer Ng searched for and could not find any trespass notice on record for Mr. Cornelius). - 48 - kind of cross-examination that the Confrontation Clause is designed to protect, and that Mr. Cornelius was unable to conduct. If Mr. Cornelius had been able to question those who were involved in the creation of the trespass notices, he would have been able to explore crucial areas of uncertainty pertaining to these important pieces of prosecution evidence. If, for example, a witness who had knowledge about the circumstances of the creation of the trespass notice dated August 6, 2004, had been produced, Mr. Cornelius could have questioned that witness about the fact that it is associated with an offense alleged to have occurred a full week earlier. Mr. Cornelius would have been able to highlight the fact that the delay indicated by this discrepancy was in stark contrast with Delacruz’s sworn testimony, see A.95; T.89 (testifying that trespass notices are drafted “[a]t the time” of the events that they describe), and thus been able to throw still more doubt on the credibility of this key witness’s testimony, and on the whole process by which the prosecution alleged that Mr. Cornelius came to know that his entry would be unlawful.18 Indeed, if defense counsel had been able to voir dire the author of this trespass notice, he would have been able to oppose the admissibility of this 19See N.Y. C.P.L.R. § 4518(a) (McKinney 2007) (“at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter”); People v. Cratsley, 86 N.Y.2d 81, 89 (1995) (explaining that this requirement “assur[es] that the recollection is fairly accurate and the entries routinely made”) 20Prince, Richardson on Evidence, § 8–306 (Farrell 11th Ed.); Cratsley, 86 N.Y.2d at 89-91. - 49 - document as a business record, in light of the requirement that such records be completed within a reasonable time after the events described,19 and that the witness be familiar with the record keeping procedures of the subject business.20 This hamstringing from essential areas of inquiry is just what the Supreme Court and this Court have labored to prevent. See Pacer, 6 N.Y.3d at 512 (listing all the types of questions that the defendant could have asked if his right of confrontation had been honored); id. (“[t]he lack of a live witness to confront eliminated [appellant’s] opportunity to contest a decisive piece of evidence against him. This is exactly the evil the Confrontation Clause was designed to prevent.”). The Confrontation Clause guarantees criminal defendants the benefit of cross-examination – “the principal means by which the believability of a witness and the truth of his testimony are tested,” Davis v. Alaska, 415 U.S. 308, 316 (1974) – and the cross-examination of Store Detective Delacruz, which revealed his weaknesses as a witness, provided a demonstration of the extraordinary importance of the right of confrontation that Mr. Cornelius was denied. Without cross-examination, the jury would have heard Delacruz testify that he watched on video surveillance as Mr. Cornelius started to conceal disposable cameras in his 21In California v. Green, 399 U.S. 149, 158 (1970), the Supreme Court listed several specific ways in which confrontation advances the truth: it “(1) insures that the witness will give his statements under oath – thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” - 50 - backpack. A.108-09; T.102-03. Because of cross-examination, the jury also heard Delacruz admit that, in fact, the video present in court did not show Mr. Cornelius putting merchandise in his backpack. A.135; T.129. Moreover, when confronted with this discrepancy, Delacruz appeared to invent another, longer video, not in court that day, which was never turned over to the prosecution with all the other videos of the incident.21 A.145; T.139. The jury could certainly consider this potentially fabricated testimony in assessing the credibility of the prosecution’s sole witness to Mr. Cornelius’ purported actions in the Duane Reade prior to the altercation. Thus, through the cherished technique of confronting a witness, Mr. Cornelius was able to highlight Delacruz’s lack of credibility. Mr. Cornelius was similarly entitled to employ the “greatest legal engine . . . for the discovery of truth” in questioning the other witnesses against him also. Green, 399 U.S. at 158. Defense counsel demanded that each witness bearing testimony against Mr. Cornelius be named, be present, and be questioned. His efforts were unavailing, and a mass of testimonial material was introduced through a witness whose - 51 - credibility was impaired and whose testimony was in conflict with the material that was admitted on his word. It is now incumbent upon this Court to make clear that testimonial evidence admitted in all criminal trials in New York State be tested through the adversarial process. [T]he need for vigilance that undergirds the Sixth Amendment is quite necessary today, in just such run-of-the-mill cases. Our modern criminal justice system is verging on an assembly line – a machinery that is all too often built to process cases and convictions with minimal adversarialism. And the people caught up in that system are all too often the poor and disenfranchised – people whose prosecutions generate no public scrutiny whatsoever. We need to have certain backstops that these defendants can insist upon, or else they just get churned through the system without any protections at all. Jeffrey L. Fisher, Originalism as an Anchor for the Sixth Amendment, 34 Harv. J.L. & Pub. Pol’y 53, 62 (2011). - 52 - POINT II THE EVIDENCE THAT THE COURT PERMITTED UNDER SANDOVAL AND MOLINEUX WAS CUMULATIVE, EXCESSIVE, AND OVERWHELMINGLY PREJUDICIAL IN ITS SIMILARITY TO THE CRIME CHARGED, THEREBY DEPRIVING AUSTIN CORNELIUS OF A FAIR TRIAL. Through a combination of Sandoval and Molineux evidence, Austin Cornelius’ trial was so saturated with material relating to his prior conduct that he had no chance of receiving a fair trial on the charges at hand. Under Molineux, the prosecution was permitted to introduce three prior trespass notices and evidence about a third-degree burglary conviction and a petit larceny conviction, each one involving a Duane Reade. See People v. Molineux, 168 N.Y. 264 (1901). Under Sandoval, the prosecution was also permitted to cross-examine Mr. Cornelius about four additional convictions relating to Duane Reade, including three petit larcenies, each involving a trespass notice, and an assault. See People v. Sandoval, 34 N.Y.2d 371 (1974). The fact that much of the prior conduct was similar to that alleged at Mr. Cornelius’ trial only increased the prejudice. The court’s ruling, allowing so much material of so similar a nature, was an abuse of discretion. Because Mr. Cornelius was prejudiced by this prior bad acts evidence, his conviction should be reversed and a new trial ordered. U.S. Const. amends. VI, XIV; N.Y. Const. art. I, § 6. - 53 - A. The Nature and Quantity of the Material Permitted under Sandoval Created a Strong Likelihood that It Would Be Used to Determine Propensity, Rather Than Assess Credibility. The Sandoval ruling permitted cross-examination regarding four crimes that had occurred in Duane Reade. A.37; H.110. Three of them were petit larcenies, in a case in which the prosecution sought to prove that Mr. Cornelius had intended to commit a larceny in Duane Reade. Id. The fourth was an assault in Duane Reade, in a case in which the prosecution sought to prove that Mr. Cornelius had caused physical injury to someone in a Duane Reade. Id. These similarities of location and conduct made it inevitable that this material would be used to determine propensity rather than credibility. The admission of material under Sandoval is permitted solely on the issue of credibility. Sandoval, 34 N.Y.2d at 376. The court must “strike a proper balance between the probative worth of [a prior conviction] on the issue of credibility and the risk of unfair prejudice to defendant under Sandoval.” People v. Fuller, 197 A.D.2d 881, 881-82 (4th Dep’t 1993). When a prior conviction “has no purpose other than to show that a defendant is of a criminal bent or character and thus likely to have committed the crime charged, it should be excluded.” Sandoval, 34 N.Y.2d at 377 (quoting People v. Schwartzman, 24 N.Y.2d 241, 247 (1969)); see also People v. Mayrant, 43 N.Y.2d 236, 239 (1977). - 54 - To be sure, although this Court warned in Sandoval about the risk of prejudice inherent in permitting impeachment of a defendant with prior convictions for the same or similar criminal conduct as that on trial, this Court has never established a bright-line rule prohibiting such impeachment. To the contrary, this Court has pointedly “eschewed fixed rules to determine where to draw the line.” People v. Hayes, 97 N.Y.2d 203, 208 (2002); see also People v. Smith, 18 N.Y.3d 588, 594 (2012); People v. Walker, 83 N.Y.2d 455, 459 (1994); People v. Pavao, 59 N.Y.2d 282, 292 (1983). However, that this Court has permitted trial courts to exercise their discretion broadly does not mean that there are no limits to such discretion or that all appellate review is precluded. The risk of prejudice is particularly great where the Sandoval material is similar to the charged incident. See People v. Carmack, 52 A.D.2d 264, 266 (4th Dep’t 1976); People v. Cooke, 101 A.D.2d 983, 984 (3d Dep’t 1984) (abuse of discretion to permit cross-examination on prior conviction similar to crime charged); People v. Williams, 56 N.Y.2d 236, 239 (1982). Moreover, this risk only increases where the Sandoval material relates not only to the substance of the charged crime but also to the particular manner in which it was committed. Indeed, while the fact that the previous convictions occurred at Duane Reade had arguable relevance under Molineux, the location of the crimes had no relevance to Mr. Cornelius’ credibility and served only to establish propensity. In Bowles, the - 55 - First Department found error where, in a trial in which the defendant was charged with grand larceny at Macy’s, the prosecution was permitted to cross-examination on “petty thefts similar to the crime charged.” People v. Bowles, 132 A.D.2d 467, 467 (1st Dep’t 1987). The cross-examination “should have been sharply curtailed, particularly in connection with the conviction for trespassing in Macy’s.” Id.; see also People v. Coe, 95 A.D.2d 685, 686-87 (1st Dep’t 1983) (error in Sandoval ruling aggravated when District Attorney permitted to inquire into details of a burglary allegedly committed by defendant which was close in time and location to that for which he was on trial); Fuller, 197 A.D.2d at 882. In this case, the similarity of the prior convictions to the conduct charged heightened the risk of prejudice. See, e.g., Williams, 56 N.Y.2d at 239. In a trial that centered on allegations of theft and violence in a Duane Reade, the court permitted cross-examination on three convictions for petit larceny in a Duane Reade, and one conviction for assault in a Duane Reade. It was inevitable that the jury would consider this material relevant to a propensity for thefts and violence, and specifically for thefts and violence in Duane Reade stores. It is in these situations that a Sandoval compromise, in which the nature of the prior convictions is omitted, has been found particularly appropriate. See People v. Finger, 166 A.D.2d 714, 716 (2d Dep’t 1990) (Sandoval compromise should have been used, rather than acts surrounding prior attempted burglary conviction in trial - 56 - for burglary); Coe, 95 A.D.2d at 687; People v. Hicks, 88 A.D.2d 519, 519 (1st Dep’t 1982); People v. Bukovsky, 183 A.D.2d 942, 942 (3d Dep’t 1992). Moreover, there is no indication that the court weighed the extent to which this similarity might be taken as proof of commission of the crime charged. Id. The court did not “strike a proper balance” between probative worth on the issue of credibility and the risk of unfair prejudice. Fuller, 197 A.D.2d at 881-82. To the contrary, the court appears to have considered, in a way completely improper, that the probative worth of this material related to “his intent and his knowledge, his notice that he wasn’t supposed to be in Duane Reade.” A.37; H.110. Thus, the court conflated the Molineux and Sandoval inquiries, importing the Molineux exceptions of “intent” and “knowledge” into a Sandoval determination that should have been limited to credibility. Id. Finally, the risk of prejudice is particularly great where, as here, the defendant is the only witness to his version of events. See Mayrant, 43 N.Y.2d at 240; People v. Dickman, 42 N.Y.2d 294, 298 (1977). Mr. Cornelius was the only witness who could testify as to whether he knew he was barred from Duane Reade, and whether he intended to steal from Duane Reade. The jury received his testimony, but only in combination with an array of Sandoval material that threatened to overwhelm it. - 57 - B. The Amount and Nature of the Material Admitted under Molineux Created a Strong Risk that the Material Would Be Considered for Propensity Purposes, Rather Than Legitimate Molineux Purposes. The Molineux ruling permitted the prosecution to introduce three Duane Reade trespass notices. A.29; H.102. It also permitted testimony regarding a petit larceny in a Duane Reade that had occurred immediately prior to the charged incident, as well as testimony relating to another incident similar to the crime charged, namely a shoplifting incident that led to Mr. Cornelius’ conviction for third-degree burglary. A.26-28; A.35; H.99-101; H.108. The latter incident had involved one of the same security guards involved in the crime charged, Dario Delacruz. A.26; H.99. Both of these convictions had involved Mr. Cornelius placing Duane Reade items into a bag, as was alleged in the case on trial. A.8; A.11; H.81; T.84. The cumulative effect of this material, all of which stemmed from conduct similar to the conduct charged, made it inevitable that it would be used to determine propensity rather than for any permissible Molineux purpose. Material can be admitted under Molineux only where it is “probative of some legally relevant and material issue aside from the defendant’s propensity to commit the crime charged.” People v. Wlasiuk, 32 A.D.3d 674, 676 (3d Dep’t 2006). Where evidence is unnecessary to the prosecution’s case, it may not be admitted. See People v. Ely, 68 N.Y.2d 520, 530 (1986). It must not “serve merely to ‘bootstrap’ the People’s case by showing a criminal propensity to - 58 - commit the charged crime.” People v. Sanchez, 154 A.D.2d 15, 23 (1st Dep’t 1990); see Wlasiuk, 32 A.D.3d at 677-78. Moreover, even when relevant, Molineux material must be excluded unless its probative value outweighs its potential for prejudice. See Ely, 68 N.Y.2d at 529. Where there is no record evidence that the trial court “attempted to measure the probative value of the evidence by ascertaining the necessity of its presentation or whether it was cumulative of other evidence presented by the People,” the evidence was improperly admitted. Wlasiuk, 32 A.D.3d at 678 (finding error where arguments at Molineux/Ventimiglia hearing exclusively addressed to proffered testimony’s “relevance to an issue other than defendant’s propensity” and no discussion of possible prejudice.) The risk of unfair prejudice is increased where the material admitted under Molineux is similar to the charged conduct. See People v. Bell, 15 Misc. 3d 116, 117 (2d Dep’t 2007) (sheer volume and inflammatory nature of proof unduly prejudicial where, inter alia, prior conduct almost identical to charged conduct); People v. Correal, 160 A.D.2d 85, 92 (1st Dep’t 1990). The risk of unfair prejudice also increases as the amount of material increases, see Bell, 15 Misc. 3d at 117, and where the trial involves “repeated presentation of prior bad act evidence through multiple witnesses.” Wlasiuk, 32 A.D.3d at 678. - 59 - Finally, where no proper limiting instruction is given, error is committed. See People v. Greene, 306 A.D.2d 639, 642 (3d Dep’t 2003) (error not harmless where court failed to give cautionary instructions at time each of the prior bad acts received and during final instructions, despite no request or objection from defense counsel); People v. Wright, 5 A.D.3d 873, 876 (3d Dep’t 2004). In this case, the admission of three trespass notices and the details of two prior incidents of theft or attempted theft from Duane Reade went beyond what was necessary to the prosecution’s case. Nor is there any indication that the judge took steps to ascertain whether the evidence was necessary or instead cumulative. See Wlasiuk, 32 A.D.3d at 678. The volume and inflammatory nature of this evidence was unduly prejudicial, given its similarity to the charged conduct. See Bell, 15 Misc. 3d at 117. The jury was told about two prior incidents in which Mr. Cornelius had stolen or attempted to steal from Duane Reade, including one that had occurred immediately prior to the charged incident, and one that, like Mr. Cornelius’ trial, involved an allegation that Dario Delacruz apprehended him for an attempted theft resulting in a burglary charge. A.26-29; A.52-56; A.90-91; A.104; H.99-102; T.27-31; T.84-85; T.98. It was inevitable that this evidence would be interpreted as indicating a propensity for theft, especially from Duane Reade. The prejudice was increased by the fact that prior bad act evidence was introduced through both Delacruz, A.90-108; T.84-102, and Officer Ng, A.53-57; - 60 - T.28-32, with Noriega providing additional testimony regarding one of the key areas of Molineux material, namely trespass notices. A.84; T.54; see Wlasiuk, 32 A.D.3d at 678. Thus, three out of four of the prosecution witnesses testified about Molineux evidence, one of them solely about it. In the case of the prosecution’s main witness, Delacruz, a significant portion of his testimony related to prior bad act evidence. In addition, no instruction was given to the jury about the purpose of the trespass notices when they were admitted. A.99; A.104; T.93; T.98; Greene, 306 A.D.2d at 642; Wright, 5 A.D.3d at 876. C. The Sandoval and Molineux Errors Combined to Deprive Mr. Cornelius of a Fair Trial and Were Not Harmless Error. The erroneous admission, in the name of Sandoval and Molineux, of cumulative material nearly identical to the charged incident deprived Mr. Cornelius of a fair trial. In this burglary trial, Mr. Cornelius was alleged to have entered Duane Reade unlawfully despite a prior trespass notice, and to have caused physical injury to a Duane Reade employee. Despite the inevitability of prejudice, the court permitted the prosecution to introduce evidence of a burglary in Duane Reade and a petit larceny in Duane Reade, as well as three trespass notices from Duane Reade, as Molineux evidence. Then, notwithstanding the volume of prior bad acts evidence that was already being admitted as direct evidence in the case, the court permitted the prosecution to cross-examine Mr. - 61 - Cornelius about three additional petit larcenies in Duane Reade and a prior assault in Duane Reade. There was no possibility that Mr. Cornelius would receive a fair trial on the issue of whether he committed burglary in Duane Reade, given the inevitability that the jury would interpret the Sandoval and Molineux material as indicating propensity. Consideration of the two bodies of material together is particularly appropriate here, where the court made no clear distinction between the two in its final instructions. This compounded the risk that their intermingling would overwhelm the evidence relating to the charged event. It also compounded the risk that the material would not be considered for its proper purposes, a risk enhanced when the court seemed to blur the two doctrines in both its initial ruling and its final instructions to the jury. A.37; A.190; H.110; T.254. Still further confusion was caused by references in the Sandoval instructions to an assault about which the jury had heard nothing (notwithstanding the court’s ruling), and about which defense counsel had no opportunity to conduct redirect examination. A.190; T.254 (“you also heard testimony about the defendant’s prior convictions, including . . . a September 6th conviction for assault.”). Neither the Sandoval ruling, nor the Molineux ruling, nor the overwhelming prejudice caused by the combination of the two constituted harmless error. As defense counsel argued, these rulings deprived Mr. Cornelius of a fair trial, A.21; - 62 - A.36; H.94; H.109, the right to which is “of constitutional proportion.” People v. Doty, 73 A.D.2d 802, 802 (4th Dep’t 1979); see Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003) (“a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution so long as he . . . alleges a pattern of facts that clearly implicates a specific constitutional provision.”) (internal quotation marks omitted). Since Mr. Cornelius’ constitutional rights were violated, the prosecutor would have to show that any error was harmless beyond a reasonable doubt. See People v. Goldstein, 6 N.Y.3d at 129. However, even if this case were reviewed under the standard applicable to non-constitutional harmless error, reversal would still be required. “Under that standard, an error will be deemed harmless when the proof of guilt was overwhelming and there was no significant probability that the jury would have acquitted had the error not occurred.” People v. Grant, 7 N.Y.3d 421, 424 (2006) (citing People v. Crimmins, 36 N.Y.2d 230, 241-42 (1975)). There were gaps in the prosecution’s evidence as regards each element of the offense: knowledge, intent, unlawful entry, and physical injury. Officer Ng testified that on the day of the alleged incident he had searched for and been unable to discover any indication that Duane Reade had issued Mr. Cornelius a trespass notice. A.57; T.32. Delacruz gave testimony about Mr. Cornelius putting items in a backpack that was unsupported by the video surveillance shown at trial. - 63 - A.109; T.103. When confronted with the fact that the videos did not support his testimony, Delacruz appeared to invent a fourth video, which purportedly provided proof of a theft but was never turned over to the police with the three other decidedly less incriminatory videos. A.145-46; T.139-40. He did this despite having asserted earlier that the footage introduced at trial represented “an exact recording” of the events of that day,and the “exact video” that he had seen that day. A.117; A.119; T.111; T.113. Delacruz admitted that Mr. Cornelius had not attempted to leave the store at the time that Delacruz approached him. A.138-40; T.132-34. The prosecution also failed to offer into evidence any items alleged to have been recovered from Mr. Cornelius. Finally, the evidence of physical injury was weak, at best, where Delacruz’s subjective assertions of pain were uncorroborated by medical records or photographs, and he failed to establish that he was physically impaired. Thus, there was a significant probability that the jury would have acquitted Mr. Cornelius if an overwhelming quantity of prior bad acts evidence had not been admitted at trial. Mr. Cornelius’ credibility was critical. He was the only witness who could testify regarding his knowledge and intent. However, the question of his credibility was overshadowed by material from his past whose nature led inevitably to its use on the forbidden issue of propensity. - 64 - It was clear that the prosecution placed a high value on the presence of prior bad act evidence in this trial. The prosecutor opened with details of prior bad act evidence that she would offer, including references to the fact that a prior act had involved “shoplifting in a Duane Reade,” that a prior trespass notice had been issued by Delacruz, and that the jurors would be hearing “a lot in this case about something called a trespass notice.” A.47-48; T.17-18. She closed with details of prior bad act evidence that she had offered, and included specific references to Mr. Cornelius’ repeated visits to Duane Reade. A.183-84; T.217; T.225. She reminded the jurors that they had “heard a lot of testimony in this case about trespass notices and what trespass notices are.” A.187; T.228. In light of the pervasive presence of this material and the weaknesses in the prosecution’s case, it cannot be said that there was no significant probability that the errors might have contributed to Mr. Cornelius’ conviction. For all the reasons stated above, Mr. Cornelius’ conviction for burglary in the second degree must be reversed and a new trial ordered. - 65 - CONCLUSION THIS COURT SHOULD REVERSE AUSTIN CORNELIUS’ CONVICTION OF BURGLARY IN THE SECOND DEGREE AND REMAND THE CASE FOR A NEW TRIAL. Dated: New York, New York June 29, 2012 Respectfully submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant By: _____________________________ MARGARET E. KNIGHT, ESQ. Senior Staff Attorney ANNA ROBERTS, ESQ. Of Counsel OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100