The People, Respondent,v.Ronnell Jordan, Appellant.BriefN.Y.February 9, 2016December 14, 2015 VIA UPS Hon. John P. Asiello Clerk of the Court Court of Appeals Court of Appeals Hall Eagle Street Albany, New York 12207 RE: People v. Ronnell Jordan, APL-2015-00274 Your Honor: WHITE &CASE White & Case LLP 1155 Avenue of the Americas New York, NY 10036-2787 T +1 212 819 8200 whitecase.com This letter constitutes Appellant, Ronnell Jordan's ("Appellant" or "Mr. Jordan") written argument on the merits in support of reversal of the above- referenced matter. Enclosed are copies of the transcripts, the Appellate Division briefs, the Appellate Division's order affirming Appellant's conviction, and the order granting leave to appeal to this Court. SUMMARY Appellant was denied his right to fair trial because the trial court twice failed to exercise its discretion properly. First, the Honorable Joel Goldberg, Supreme Court, Kings County ("Justice Goldberg," "the court," or "the judge") permitted prospective jurors to decide for themselves, subject only to a discussion with a clerk, whether to opt out of serving on Appellant's jury based on their self- assessment that they suffered a "hardship" preventing them from serving. In doing so, he failed to subject their self-excusals to judicial oversight, although their fitness to serve was a substantive determination about which the judge was required to exercise his discretion. Instead, those jurors were asked to step outside and present their purported hardships to the court clerk, who alone would assess whether these self-selected jurors were fit to serve on this or another jury. This wholescale excusal of jurors effectively resulted in an all-volunteer jury and, by delegating to the jurors themselves and a clerk the decision as to whether a hardship excusal was warranted, the court abdicated its judicial responsibility. People v. Toliver, 89 N.Y.2d 843, 845 (1996); People v. Ahmed, 66 N.Y.2d 307 (1985). WHITE&CASE Similarly, the court allowed the People to call a rebuttal witness to impeach Appellant's only defense witness with a purported prior omission without ever determining that the People laid the proper foundation for such an impeachment. Rebuttal testimony regarding a witness's prior omission is only permissible when it has first been established, as a matter of law, that the witness being impeached was actually asked a question that warranted a response or, if never asked such a question, that it was "most unnatural" for the witness not to have volunteered the response given the circumstances. Determining whether a witness's failure to volunteer information was "most unnatural" is a foundational prerequisite that is for the trial court to determine in its discretion before counsel can impeach a witness with an omission. See, e.g., People v. Culhane, 45 N.Y.2d 757, 758-59 (1978). Here, the court failed to exercise any discretion whatsoever in assessing whether the People laid a proper foundation to impeach Appellant's witness with a purported prior omission. Instead, the court allowed a rebuttal witness to take the stand under the mistaken belief that this critical foundational assessment was "up to the jury"-which it was not. By leaving this question to the jury, the court failed to exercise its discretion in assessing that evidentiary requirement warrants reversal. People v. Cronin, 60 N.Y.2d 430 (1983). Lastly, Appellant was denied his right to a fair trial when the court allowed the People to impeach Appellant's witness with extrinsic evidence concerning an alleged offer to pay the complainant to not testify at trial. The bribery allegations were wildly speculative and not raised by the complainant until midway through the trial. Indeed, in allowing the People to call its rebuttal witness, Judge Goldberg said that the allegations might be so "bizarre that the jury would think it never happened." The probative value of such speculative and "bizarre" allegations was substantially outweighed by the risk of unfair prejudice to Appellant, whom the jury would likely believe to be the source of the alleged bribe. For the reasons stated herein, and those outlined in Appellant's Second Department briefing, Appellant's conviction should be reversed, and he should be granted a new trial. STATEMENT OF FACTS On June 6, 2011, Elijah Austin ("complainant" or "Mr. Austin") sustained a gunshot wound as he attempted to leave a birthday party in an apartment on Sterling Place in Brooklyn, New York. (Tr. 56-57). 1 The police arrested All page references are to the trial record unless otherwise specified. 2 WHITE&. CASE Appellant, Ronnell Jordan, on September 14, 2011 in connection with the shooting. (Tr. 39). The Honorable Joel Goldberg, Supreme Court, Kings County, presided over the matter, and scheduled trial to begin on October 25, 2012. Jury Selection At the outset of jury selection, Justice Goldberg explained to prospective jurors that: I know, as I said, it's a sacrifice for all of you to be here. But for some of you, this may be a hardship. You may have a family obligation, a business commitment, surgery scheduled, a ticket to go someplace that suddenly came up, a students and you have a surprise test. I guess it's not so much of a surprise if you know it's going to happen, or something like that. Now, I know also that when you got your jury duty notice you all had a chance to get a postponement. If this was an inconvenient time, you all had a chance to postpone it and, obviously, you are here so that didn't happen. As I said, something may have come up that would require you to not be able to be here for the amount of time that I said. Now, if it's a real hardship to be here, I can excuse you. I can't excuse you from jury duty. If I excuse you because you have a hardship, you will have to speak to the clerk and either one or two things will happen, you will be sent back downstairs to be eligible to be sent out on another trial which is not going to be any shorter than this, okay. You are not going to find a trial shorter than this trial, or you may be sent home and told to come back another day and not even get credit for jury duty because you' re saying it's a hardship for you to be here. That will be up to the clerk. I have no control over that. (Jury Selection Tr. 11-12). 3 WHITE & CASE Justice Goldberg then asked that any prospective jurors who believed they had a hardship to raise their hand. (Jury Selection Tr. 12). The judge told them to "step in center aisle," and advised those who raised their hands that the "clerk will speak to you outside." (Jury Selection Tr. 12). The court did not ask any such prospective juror to explain his or her hardship in open court. (Jury Selection Tr. 12-13). Through this process, at least some prospective jurors-it is unclear how many-were excused from service. (Jury Selection Tr. 12). The People's Case The Incident The People's witnesses provided the following testimony at trial. On June 6, 2011, Elijah Austin, under the influence of alcohol and marijuana, joined his friend, Bolade Aderogba (also known as, and referred to by the trial court as, "Black"), and others at an apartment on Park Place, where a group of people was celebrating Black's birthday. (Tr. 77-78). According to Mr. Austin, he and Black were "close friends" at the time. Id. The group left the Park Place apartment and later went to another apartment located on Sterling Place. (Tr. 78; 116). Mr. Austin explained that around 11 :OOPM, he played a dice game with a man he knew only as "Rah" in the apartment. (Tr. 84; 91). Mr. Austin alleged that Rah had lost in the dice game and was unable to borrow money from anyone else, so Mr. Austin stopped playing the game and decided to leave the party. (Tr. 89-91). Before he could leave the apartment, Rah allegedly approached him in the hallway, holding a gun, and told him to drop his money on the floor. (Tr. 91-92). Mr. Austin pulled the money out of his pockets and dropped it on the floor, but as he bent down to pick it back up, he alleged Rah shot him in the chest. (Tr. 92; 94). Although there were a number of people in the apartment, Mr. Austin said no one else saw him get shot because there was no one else in the hallway at that time. (Tr. 95). After Mr. Austin was shot, Black came to his aid and carried him downstairs and out of the apartment building. (Tr. 96). The police, including Officer Nicholas Altizer-Mercado, arrived shortly thereafter, and found Black holding Mr. Austin outside of the apartment on Sterling Place. (Tr. 57-58) (testimony of Officer Nicholas Altizer-Mercado). Altizer-Mercado said that although Black provided officers with his identification, he refused to cooperate with them, provide them any information regarding the shooting, and after being asked his name he refused to provide additional information and "immediately left the crime scene." (Tr. 59- 60, 65-66). An ambulance transported Mr. Austin to Brookdale Hospital for medical treatment. (Tr. 72) (testimony of Officer James Samuels). 4 WHITE 5. CASE Identification of Shooter According to Detective Carl Haymer, when police interviewed Mr. Austin in the hospital, Mr. Austin said that he knew the person who shot him, but did not know his name. (Tr. 146-14 7). Detective Haymer reached out to Black regarding the shooting, but Black supposedly refused to cooperate and hung up the phone. (Tr. 143-144). Mr. Austin indicated to police that he thought he knew who Appellant was because they both lived in the same apartment building. (Tr. 85- 86). He had only known this man for about a year at the time of the shooting, and within that period had only seen him six or seven times, although he knew two of his brothers, had played dice with him before, and once attended a party with him. (Tr. 85-86, 105, 108-11 0). Mr. Austin testified that, after the incident, he learned that "Ronnell Jordan" was the legal name of the man he had known only by the name "Rah." (Tr. 79-80; 84). Following an investigation, Detective Richard Farrina arrested Appellant on September 14, 2011. (Tr. 39). In open court, Mr. Austin identified Appellant as the man he knew as Rah. (Tr. 79). The Defense Case Direct Examination On November 5, 2012, the defense called Bolade Aderogba, or "Black," as its sole witness. (Tr. 159). On direct examination, Black testified that he had known Appellant for several years and Mr. Austin for approximately four years. (Tr. 159-160). On the evening Mr. Austin was shot, a group of people were celebrating Black's birthday with him during the day, and by the end of the night, they ended up at the apartment on Sterling Place. (Tr. 162). While Black agreed that Mr. Austin was with the group earlier that evening, Black testified that Appellant was not present at the apartment when the shooting took place. (Tr. 162-163; 165). Black was in the apartment when Mr. Austin was shot but only heard a loud pop and found Mr. Austin lying on the floor in the hallway-he did not see or know who shot Mr. Austin. (Tr. 163). Immediately after the shooting, Black carried Mr. Austin on his back down the stairs from the apartment to the sidewalk in front of the apartment complex. (Tr. 163 ). When the police arrived, they questioned Black; he told the police that he "didn't know what happened." (Tr. 164). 5 WHITE &CASE Cross-Examination During cross-examination, Black explained that, at the time of the shooting, his relationship with Mr. Austin was much closer than his relationship with Appellant, who was only the younger brother of one of Black's friends. (Tr. 170- 171; 176-177). In fact, after the shooting, Black went straight to the hospital and snuck into the intensive-care unit to be with Mr. Austin. (Tr. 179-180). By contrast, Black had no personal interest in whether Appellant went to jail in connection with this case, stating, "Not really, not really my business what happens to the case. As far as him [sic] concerned, it doesn't really matter. All I'm doing is basically letting you know that he wasn't there .... I'm here to let you know what happened. He wasn't there." (Tr. 171-172). Additionally, despite his relationship with both Mr. Austin and Appellant, Black said he never attempted to persuade Mr. Austin not to testify at the trial. (Tr. 185-186). Black also clarified on cross-examination that although Appellant was with the group at Park Place earlier that day, when the inhabitants of that apartment turned the group away, a lot of people left and went their own separate ways, while the remaining members of the group went to the apartment on Sterling Place. (Tr. 181-182). And Appellant was not one of the people who went to the Sterling Place apartment. (Tr. 182). In an attempt to impeach Black on the issue of Appellant's whereabouts, the prosecutor questioned Black regarding a brief discussion he had on June 12, 2012 with Assistant District Attorney Kyle Reeves ("ADA Reeves"). (Tr. 182). Black was summonsed to testify at trial and included in his summons was a letter from ADA Reeves asking Black to meet and discuss the case. (Tr. 182; 226-227). With respect to his discussion with ADA Reeves, the prosecutor only asked Black whether he met with ADA Reeves on June 12, and whether ADA Reeves "interviewed [him] briefly about the shooting." (Tr. 182-183). Black responded affirmatively to both questions. (Tr. 182-183). The prosecutor then attempted to impeach the witness with a purported omission by pointing out that Black never told ADA Reeves during their brief discussion that Appellant was not present in the apartment when the shooting occurred. (Tr. 183-184). Black said that ADA Reeves only asked him whether he had seen who had shot Mr. Austin, and did not question him concerning Appellant's presence at the apartment that evening. (Tr. 183-184 ). Although he knew that Appellant was being accused of shooting Mr. Austin, Black testified that 6 WHITE & CASE he was never given the opportunity to volunteer information about Appellant's absence that evening because ADA Reeves "didn't want to talk, after I told him I didn't see who shot [Mr. Austin]. He didn't want to talk to me after that. He didn't take me into his office." (Tr. 184-185). The prosecutor never affirmatively asked Black whether ADA Reeves had questioned him about Appellant' s presence on the evening of the shooting. Over the objection of defense counsel, the trial court allowed the prosecutor to continue to impeach the witness regarding his decision not to divulge this information to ADA Reeves. (Tr. 183-185). Black acknowledged visiting Appellant in prison, attending one of Appellant's pretrial proceedings, and talking to Appellant's family about the case. (Tr. 166-167, 173-17 4 ). During cross-examination, however, Black also pointed out that he was closer to Appellant's brothers than he was with Appellant (Tr. 171) and denied ever hanging up on Detective Raymer. (Tr. 188-189). The People's Rebuttal Witnesses At the conclusion of Black's cross-examination, the trial adjourned. (Tr. 189). When it resumed two days later, the court held a conference with the prosecutor and defense counsel, during which they discussed the anticipated testimony of two witnesses whom the People anticipated calling to impeach Black. (Tr. 200-208). First, the People intended to call ADA Reeves to testify, inter alia, that during their brief interaction, Black never told ADA Reeves that Appellant was not present in the apartment when Mr. Austin was shot. (Tr. 20 I). Next, the People intended to recall Mr. Austin to testify that, earlier that year, Black had allegedly attempted to bribe him not to testify at trial, though Mr. Austin never told the prosecutor about the alleged bribe until after Black had testified. (Tr. 204). Defense counsel objected to the testimony of both witnesses. (Tr. 201; 203; 207- 208). ADA Reeves' Anticipated and Actual Testimony Regarding Appellant's Presence in the Apartment Justice Goldberg and counsel engaged in the following discussion, reproduced in relevant part, regarding ADA Reeves' anticipated testimony of Black's purpmted omission: THE COURT: What is the offer of proof to Mr. Reeves? 7 WHITE &CASE THE PROSECUTOR: ... [Mr. Reeves is] also going to testify that he met with [Black] and that he never said that Ronell Jordan was not in the apartment .... MR. SHEINBERG: My objection, Judge, is based firstly on the fact that Mr. Black never told Kyle Reeves that Mr. Jordan was in the apartment. He was never asked and you can't ask him something that he was never asked. THE COURT: Well, that's not precisely true. You can't impeach someone -- this is the general rule. You can't impeach someone for failure to say something as part of a narrative account because in giving a narrative one might not be expected to give every detail, but this is more than just a narrative account. He's a purported friend of the defendant. MR. SHEINBERG: And the victim. THE COURT: And the victim and knows the defendant is charged with a crime and tells the DA, I didn't see who did the shooting but doesn't add ... , but the defendant was never there, why are you charging him? Now, one might be naturally expected to say that, without being asked. On the other hand, you can argue that unless you're asked about it, you shouldn't be expected to say that. Let me finish, please. MR. SHEINBERG: I'm sorry. THE COURT: Black said the questioning was one, two, three, very quick. Maybe it was like that. Maybe it wasn't. Mr. Reeves will be able to give us more information on that, but the jury may consider whether a witness omitted the state of facts when it would have been reasonable and logical for the witness to have stated the fact in determining whether it would have been reasonable and logical for the witness to have stated the omitted fact. You may consider whether the witness' attention was called to the matter and whether the witness was specifically asked about it. Now, the witness says he was never asked about it and maybe that's why he never said it, but on the other 8 WHITE &CASE hand, because this was so important he might, it might have been reasonable and logical for the witness to have said it even if he wasn't asked about it. That's up to the jury. MR. SHEINBERG: Well, I'm going to continue with my objection to that, Your Honor. (Tr. 201-203). MR. SHEINBERG: ... [A]nd you're permitting, I assume, from your statement, that Mr. Reeves will testify that Mr. Black, Black, never said that Jordan was not there? THE COURT: Right. (Tr. 205-206) (emphasis added). On direct examination, ADA Reeves explained that, in compliance with a letter request, Black had come to the District Attorney's Office on June 12, 2012. (Tr. 226-227). ADA Reeves claimed that during their meeting he had "discussed with [Black] the specifics, what he had seen and what he had heard and we discussed things of that nature" relative to the shooting. (Tr. 227). ADA Reeves did not, however provide any specific detail regarding his brief interaction with Black, nor did the prosecutor ask any questions about the conversation. Id. Following ADA Reeves' description of the interaction, the prosecutor asked ADA Reeves whether Black told him that Appellant was not in the apartment at the time of the shooting, to which ADA Reeves responded, "No, he did not." Id. Again, the prosecutor did not ask whether ADA Reeves had discussed with Black whether Appellant was present at the apartment that night, nor did she ask any other questions regarding the details of their conversation. Id. The prosecutor's only relevant question on direct examination was: "What did [Black] tell you at that time with respect to the incident?" Id. On cross-examination, unlike the prosecutor, defense counsel inquired if ADA Reeves asked Black if Appellant was present in the apartment on the night of the shooting. (Tr. 229). ADA Reeves responded that he did not specifically ask Black whether Appellant was in the apartment. Id. Instead, ADA Reeves claimed that he only asked Black who actually was present in the apartment that night, Id., to which Black allegedly responded that "there was too many people in the apartment, that he didn't remember, other than Mr. Austin, exactly, who was in the 9 WHITE&CASE apartment." Id. The entire interaction was brief and ended when Black, who had told ADA Reeves that he was uncomfortable being in the District Attorney's Office, got on the elevator and left. (Tr. 231 ). Mr. Austin's Anticipated and Actual Testimony Regarding Black's Alleged Bribe Relative to Mr. Austin's anticipated testimony regarding Black's alleged bribe, Justice Goldberg and counsel had the following exchange, reproduced in relevant part: THE COURT: ... [A]nd then there is another witness that the prosecution wants to call for impeachment, which we will get which is the complainant and the complainant you want to recall him for what purpose? THE PROSECUTOR: ... [The complainant] had told me that Black had tried to convince him not to testify. I just spoke to him. It was several times, I think he said and I have to review with him because I was rushing, three times, and in addition to that, Black offered him $10,000 not to testify. THE COURT: All right. Now, this is all-you can't connect this to the defendant? THE PROSECUTOR: Right. THE COURT: This is all because purportedly Black is friendly with the defendant? THE PROSECUTOR: Correct. THE COURT: And is doing this because he's friends with the defendant. Now, to also bring out that he's scared of the defendant number one, undercuts your other position because he said he was scared of the defendant and number two, implies that the defendant is, you know, maybe has committed an uncharged crime of an attempt to intimidate witnesses. MR. SHEINBERG: Or bribery. 10 WHITE & CASE THE COURT: Well, the limiting instruction I would give is with the reference to the complaining witness, if he testifies that Black offered him money not to testify and tried to persuade him not to testify. The instruction I' 11 give to the jury is there is no evidence, if, even if you find that this happened that this was done at the defendant's request and that the only reason I'm letting you hear the testimony is to show for your, the jurors' consideration whether or not Black has a friendship towards the defendant that influenced the truthfulness of his testimony. MR. SHEINBERG: Yeah, but this latest statement. THE COURT: Offering him $10,000. MR. SHEINBERG: That's crazy-- withdrawn. It's an inappropriate statement. I would object to that. THE COURT: It might be so bizarre that the jury would think it never happened. MR. SHEINBERG: I know, but even to suggest that, would be, in effect, suggesting that the defendant somehow was involved in the bribery scheme. THE COURT: I'll tell the jury there was no evidence that the defendant was involved. Black was doing this out of his own pocket because he's such good friends with the defendant. MR. SHEINBERG: But he's also good friends with the complainant. THE PROSECUTOR: That's not my position. THE COURT: Yes, he might be good friends with the complainant. That's how the defendant, he testified they were good friends. You can cross-examine him about all this. 11 WHITE 5. CASE MR. SHEINBERG: I'm taking exception. THE COURT: The purpose of the testimony is to show the bias the witness has in this case towards the defendant and, therefore, is not telling the truth, ultimately when he says that the defendant was not present at the time of the shooting. MR. SHEINBERG: So you're permitting the $10,000 bribery to go in, is that correct? THE COURT: If the prosecution wants to stretch it, to try to convince the jury that it actually happened, yes. MR. SHEINBERG: Judge, I take exception. The record is noted and some judge somewhere if there is a conviction will make a decision. THE COURT: For Appellate review. MR. SHEINBERG: I want the record to reflect I take a strenuous objection. (Tr. 204-208). Following ADA Reeves' testimony, the People recalled Mr. Austin. (Tr. 232). During direct examination, Mr. Austin testified that, on three or four occasions, Black had attempted to persuade him not to testify at Appellant's trial. (Tr. 233). Mr. Austin also testified that Black had offered him money not to testify. (Tr. 233-234). Following this statement, Justice Goldberg instructed the jury that Mr. Austin's testimony "is only limited to as to whether or not it affects your evaluation of [Black's] testimony." (Tr. 234). The judge further explained: THE COURT: ... There is no evidence that this offer of money or these requests not to testify were done at the request of the defendant or that the defendant had any knowledge assuming he'd ever have it that [Black] was offered money for that, [Black] ever offered money to the witness or [Black] ever requested the witness not to testify. No evidence at all that the defendant knew anything about this, assuming 12 (Tr. 234). WHITE & CASE it ever took place. It's only to evaluate, if you find it did take place, your evaluation of [Black's] testimony and whether or not he has any bias or interest that might affect the believability of his testimony. During cross-examination, when asked how much money Black had offered him, Mr. Austin replied, "[l]ike $10,000." (Tr. 237). Mr. Austin could not recall the precise date of this conversation with Black, but did say that it occurred during the summer of2012. (Tr. 238). Although Mr. Austin knew he would be testifying at trial, he conceded that he did not reveal the alleged bribery attempt to the prosecutor or any law-enforcement officer until two days earlier, on November 5, 2012, when he raised the issue to the prosecutor on the telephone following his trial testimony. (Tr. 239-241). *** The People also called Dr. Jonathan Landon, a surgical resident at Brookdale hospital, who described Mr. Austin's internal injuries as "significant." (Tr. 215). Dr. Landon also explained that an unauthorized individual would not have been able to enter the intensive-care unit where Mr. Austin was held immediately after the shooting, as Black alleged he did. (Tr. 217-218). Summation On summation, the prosecutor highlighted Black's failure to volunteer to ADA Reeves that Appellant was not present in the apartment the night Mr. Austin was shot. (Tr. 277-278). The prosecutor explained that Black's testimony was rebutted by ADA Reeves, who is "an ADA[;] he has no reason to lie." (Tr. 277). Furthermore, the prosecutor described ADA Reeves' testimony to the jury: "He tells you Black refused to cooperate and told him he refuses to testify. Mr. Reeves said only a five minute meet[ing]. Mr. Reeves says five to 10 [sic] minutes and he said he was uncooperative. Gave a short statement, asked a few questions and got on the elevator and he left." (Tr. 277). Arguing that Black's cross-examination and ADA Reeves' testimony revealed that Black's was untruthful, the prosecutor urged the jury to disregard Black's testimony in its entirety. (Tr. 278). 13 WHITE & CASE Jmy Verdict and Sentencing The jury found Appellant not guilty of attempted murder in the second degree but guilty of attempted assault in the first degree, criminal possession of a weapon in the second degree, and robbery in the first degree. (Tr. 332-335). The court sentenced Appellant on all charges to fourteen years' imprisonment, plus five years' post-release supervision, with the sentences to run concurrently. (Sentencing Tr. 9-1 0). Appeal On appeal to the Appellate Division, Second Department, Appellant argued, inter alia, that the court improperly delegated assessment of the alleged hardship of potential jurors to his clerk, that the use of a prior omission and rebuttal testimony to impeach the defense's sole witness on cross-examination was improper, and that the admission of speculative and highly prejudicial extrinsic evidence at trial regarding the sole defense witness's alleged attempt to bribe the complainant to not testify violated Appellant's due-process rights. The Second Department affirmed Appellant's conviction on February 11, 2015, holding that Appellant's contention that the trial court improperly delegated its judicial function to his clerk in dismissing jurors based on their own subjective assessment of hardship was unpreserved for appellate review and without merit. People v. Jordan, 125 A.D.3d 787 (2d Dep't 2015). The Second Department did not substantively discuss Appellant's claims on this point. The Second Department similarly rejected the other two arguments now on appeal, holding that Black was properly impeached by way of ADA Reeves' rebuttal testimony, and that Justice Goldberg's instruction to the jury cured any possible prejudice to Appellant stemming from Mr. Austin's rebuttal testimony concerning Black's alleged attempt to bribe Mr. Austin not to testify at trial. ld. at 787-88. On October 23, 2015 this Court (Abdus-Salaam, J.) granted leave to appeal. On October 23, 2015 this case was selected for Sua Sponte Merits review pursuant to 22 NYCRR 500.ll(b). 14 WHITE & CASE POINT I The Court Improperly Abdicated Its Judicial Function When It Permitted The Clerk To Dismiss The Self-Selected Jurors, Based On Their Own Subjective And Unquestioned Belief Of A Qualifying Hardship The court here permitted prospective jurors to decide for themselves, subject only to a discussion with a clerk, whether to opt out of serving on Appellant's jury based on their self-assessment that they suffered a "hardship" due to a fami ly obligation or business commitment. It failed to subject their self-excusals to judicial oversight, although their fitness to serve was a substantive determination about which the court was required to exercise its discretion. This wholescale excusal effectively resulted in an all-volunteer jury and, by delegating to the jurors themselves and a clerk the decision as to whether a hardship excusal was warranted, the court abdicated its judicial responsibility. Ahmed, 66 N.Y.2d at 31 0. This violation of appellant's constitutional right to a jury trial under the supervision of a judge was a mode-of-proceedings error requiring reversal. U.S. Const., Amends. VI, XIV; N.Y. Const., Art I,§§ 2, 6. "Fundamental to [New York's] constitutional heritage is an accused's right to trial by impartial jury." People v. Johnson, 94 N.Y.2d 600, 610 (2000) (citing N.Y. Const. Art. I, § 2; U.S. Const. Amends. VI, XIV). Thus, a "defendant has a constitutional right to a trial by a particular jury chosen according to law, in whose selection the defendant has had a voice." People v. Buford, 69 N.Y.2d 290, 297-98 (1987) (internal citation and quotation omitted); see also People v. Decker, 157 N.Y. 186, 190-91 (1898); People v. McQuade, 110 N.Y. 284, 305-06 (1888); Hildreth v. City ofTroy, 101 N.Y. 234, 239 (1886). "[A]n integral part of a defendant's right to a jury trial is the supervision and active participation of a Judge . ... " People v. Monroe, 90 N.Y.2d 982, 984 (1997); see also Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899) (common law trial-by-jury right encompasses "superintendence of a judge"). If a judge violates this precept and his "absence from trial proceedings prevents performance of an essential, nondelegable judicial function reversal is required." Monroe, 90 N.Y.2d at 984; see also People v. Thompson, 90 N.Y.2d 615, 621 (1997) (there is "no question that the supervision of a Judge is an important and nonwaivable element ofthe right to a jury trial"); People v. Bayes, 78 N.Y.2d 546,551 (1991) (if court "surrender[s] its nondelegable judicial responsibility," defendant is "deprived of his fundamental right to trial by jury and thereby denied ... a fair trial"); People v. 15 WHITE 5. CASE Torres, 72 N.Y.2d 1007, 1008-09 (1988) Uudge may not "improperly delegate[] a judicial duty to a nonjudicial staff member"). "[B]ecause of its impact on the constitutional guarantee of trial by jury," deprivation of the right to the supervision of a judge is an error that requires no protest, for it "implicates the organization of the court or the mode of proceedings prescribed by law." People v. Ahmed, 66 N.Y.2d 307, 310 (1985). These principles mean that a judge may neither abdicate, nor delegate to others, his responsibility to rule on the competency of prospective jurors to serve at trial. People v. Toliver, 89 N.Y.2d 843 (1996). In Toliver, the judge absented himself during portions of the prosecutor's voir dire of prospective jurors. This Court reversed the conviction, holding: The presence of and supervision by a Judge constitutes an integral component of the right to a jury trial. Since the selection of the jury is part of the criminal trial, a defendant has a fundamental right to have a Judge preside over and supervise the voir dire proceedings .... A judge who relinquishes control over the proceedings or delegates the duty to supervise deprives a defendant of the right to a trial by jury, requiring reversal. . .. In the end, it is the Judge who is the ultimate arbiter of a prospective juror's fitness to serve. 89 N.Y.2d at 844-45 (citations omitted). Precisely the same error "implicat[ing] the organization of the court or the mode of proceedings prescribed by law," Ahmed, 66 N. Y .2d at 31 0, occurred during jury selection at Appellant's trial. After the panel was sworn and prior to seating prospective jurors for the first round of jury selection, the judge informed the panel of the anticipated length of the trial and explained that jurors who had a hardship, such as "a family obligation, a business commitment, surgery scheduled, a ticket to go someplace that suddenly came up, a students and you have a surprise test." could be excused (Jury Selection Tr. 11 ). Instead of supervising and controlling this excusal process, however, the judge directed jurors to decide, for themselves, whether this basis for not serving on appellant's trial applied to them and discuss it only with a clerk: 16 WHITE 0. CASE I can ask you now, if you think you will have a hardship being here for the amount of time that I said this trial is going to take, if you think you have a hardship, would you raise your hand? Anybody thinks they have a hardship they can't be here? That's great. All right. (Jury Selection Tr. 12) (emphasis added). If I excuse you because you have a hardship, you will have to speak to the clerk and either one or two things will happen, you will be sent back downstairs to be eligible to be sent out on another trial which is not going to be any shorter than this, okay. You are not going to find a trial shorter than this trial, or you may be sent home and told to come back another day and not even get credit for jury duty because you're saying it's a hardship for you to be here. That will be up to the clerk. I have no control over that. (Jury Selection Tr. 11-12) (emphasis added). In effect, the judge's actions permitted jurors to self-select, possibly subject to a clerk's discretion, whether they would serve on Appellant's jury. Certainly, the judge had the discretion to engage in a pre-voir dire screening process. People v. Velasco, 77 N.Y.2d 469, 473 (1991). But it is well-settled that the question of whether "a prospective juror [is] disqualified before voir dire [is] a matter for the court." Id. (emphasis added). And it is equally well-settled that no one but the judge may discharge jurors from serving. C.P.L. § 270.20; Toliver, 89 N.Y.2d at 845 Uudge "is the ultimate arbiter" of whether a juror serves).2 2 That the abdication here involved juror qualification to serve rather than voir dire questioning is a distinction without a difference because the Court has interpreted the trial court's duty to supervise jury selection under Toliver broadly, and imposed no limits on its application to the jury selection process. In People v. Stiggins, 1 N.Y.3d 529, 530 (2003), a town justice unfamiliar with jury trials "had to be guided by the prosecutor through every aspect of jury selection." Although the judge did not physically absent himself and apparently participated in jury selection to some degree, the Court held that this " lack of adequate supervision and control" deprived the defendant of her right to a jury trial, for it "resulted in the judge relinquishing control over the jury selection process." Id. (quoting Toliver, 89 N.Y.2d at 844; internal brackets and quotation marks 17 WHITE 5. CASE At every stage of jury selection and trial, whether a juror has a hardship unquestionably is not a ministerial act but a "substantive ruling," People v. Hernandez, 94 N.Y.2d 552, 556 (2000), for it is a discretionary legal determination requiring application of facts to the law. For example, this Court has long distinguished between the ordinary "inconveniences" often inherent in jury service and those so extreme that their effect upon a juror warrants a mistrial. People v. Michael, 48 N.Y.2d 1, 9-10 (1979). The Appellate Division routinely reviews whether pre-voir dire excusal is warranted due to personal obligations. See, e.g., People v. Coleman, 262 A.D.2d 219, 220 (1st Dep't 1999); People v. Olmo, 260 A.D.2d 410, 410 (2d Dep't 1999). It also considers whether an already-sworn juror's claim of personal, financial, or employment difficulties constitutes genuine hardship or mere inconvenience. See, ~, People v. Nettles, 88 A.D.3d 492 (1st Dep't 2011); People v. Parson, 268 A.D.2d 208 (1st Dep't 2000); People v. Vargas, 260 A.D.2d 258 (1 st Dep't 1999); People v. Edmonds, 223 A.D.2d 455 (1st Dep't 1996); People v. Oyewole, 220 A.D.2d 624 (1st Dep't 1995); People v. Belgrave, 172 A.D.2d 335 (1st Dep't 1991); People v. Nocedo, 161 A.D.2d 297 (1st Dep't 1990); People v. Vasguez, 141 A.D.2d 880 (2d Dep't 1988). Finally, a prospective juror seeking a "hardship" excusal or postponement under Judiciary Law § 517( c) must meet an exacting standard in order to obtain it. He must show either that: ( 1) he is a "caregiver" who "(i) has a personal obligation to care for another," and "(ii) no alternative care is available without severe financial hardship . .. or because special needs of the person receiving care foreclose the temporary substitution of another caregiver"; (2) he would experience "financial hardship that will significantly compromise the applicant's ability to support himself, herself or dependents"; (3) his "absence to serve as a juror would jeopardize to a significant degree the health, welfare or safety of the public"; or (4) there is no available transpmtation for the applicant to travel to court. 22 N.Y.C.R.R. § 128.6-a, Guidelines for Postponements or Excusals at (II)(B). Clearly, therefore, because a potential juror has to make a sufficient showing to warrant excusal, his or her self-perception of "hardship" must be subjected to judicial consideration and review; a mere allegation is not enough. Equally clearly, the court is then required to render a discretionary decision accepting or omitted); see also People v. Pinkney, 272 A.D.2d 52, 52-53 (1st Dep' t 2000) (even defense consent will not immunize a judge's delegation of authority during jury selection). 18 WHITE&CASE rejecting the hardship claim, as it applies to the specific trial before it, on the basis of the applicable legal standard. See Arteaga v. State ofNew York, 72 N.Y.2d 212, 216 (1988) (discretionary decisions of a "judicial nature" include those "requiring the application of governing rules to particular facts"); see also Coleman, 262 A.D.2d at 220 (pre-voir dire hardship discharge is a discretionary exercise); Olmo, 260 A.D.2d at 410 (same). Here, however, rather than exerc1smg its discretion in assessing juror hardship claims, the court vested this decision in the jurors themselves in consultation with a clerk. By allowing either the jurors on their own or a clerk to decide whether they would serve at Apellant's trial, the court abdicated its judicial responsibility. It delegated its function to the jurors themselves (or the clerk), as surely as if it had absented itself from the courtroom. Toliver, 89 N.Y.2d at 844- 45; see Ahmed, 66 N.Y.2d at 310. Moreover, insofar as the group of prospective jurors lined up and walked out of the courtroom upon their own assessment that serving at appellant's trial was a "hardship," to discuss that "hardship" only with a clerk, the court failed to exercise its discretion altogether. See Cronin, 60 N.Y.2d at 432 (reversing due to judge's failure to exercise discretion). Plainly, the court was aware that its judicial function generally required it to evaluate whether a reason advanced to excuse a prospective juror was a valid one. In fact, in numerous instances throughout jury selection, the court required a juror or attorney to state the precise reason for excusal, considered the proffered ground, and made a judicial determination as to whether that person should be excused. (See, e.g., Jury Selection Tr. 18-19). But it exercised no such judicial function for the prospective jurors excused from the panel due to their own assessment of "hardship." Thus, in the end, it was the excused jurors or a clerk- not the court - who had "the last word" in Appellant's case. People v. Kelly, 5 N.Y.3d 116, 121 (2005). Cf. People v. Mays, 20 N.Y.3d 969, 971 (2012); Hernandez, 94 N.Y.2d at 556; Monroe, 90 N.Y.2d at 984-85. The record does not disclose why the court deviated from its otherwise proper supervision of jury selection when it came to claims of hardship. Apart from being an unauthorized delegation of authority, the judge's actions in this case were unsound for many additional reasons. For example, issuing a blanket invitation to self-selection for jury service allows panelists to opt out of serving simply because they may find the anticipated length of the trial inconvenient. (Jury Selection Tr. 10-11) The invitation to decide for oneself whether one should serve therefore undermines the civic duty that jury service 19 WHITE &CASE embodies. See Thiel v. Southern Pacific Co., 328 U.S. 217, 224 (1946) ("Jury service is a duty as well as a privilege of citizenship; it is a duty that cannot be shirked on a plea of inconvenience or decreased earning power"). Indeed, this Court has noted: [A] citizen called to jury duty will often be required to make some personal sacrifices, financial or otherwise. This usually seems unjust to those so called upon, and in fact it sometimes is unjust, but it is necessary as long as we are to persist in our cherished belief that an accused felon is entitled to be tried by a jury of his peers. . .. Most jurors will remain faithful to their oath and put aside their personal grievances in the attempt to reach a fair verdict. Were this not so, the jury system would be a mockery, for there are few jurors who would not prefer to be elsewhere. Michael, 48 N.Y.2d at 10. The court's practice of allowing self-excusals also thwarted New York's policy of including as wide a spectrum of prospective jurors as possible and thus ensuring that jurors are drawn from a fair cross-section of the community. See Judiciary Law § 500 ("It is the policy of this state that all litigants [are entitled to] juries selected at random from a fair cross-section of the community .. . and that all eligible citizens shall have the opportunity to serve ... [and] an obligation to serve when summoned for that purpose, unless excused"). Indeed, New York's most recent jury reform measures further evidence this, as they "eliminated exemptions and facilitated the selection of professionals to jury pools comprising 'a fair cross-section of the community."' People v. Maragh, 94 N.Y.2d 569, 575 (2000); see also People v. Guzman, 60 N.Y.2d 403, 409 n.3 ( 1983) ("The right to a jury chosen from a fair cross section is also protected by the Sixth Amendment guarantee of an impartial jury trial"). This policy is hampered immeasurably by allowing panelists to decide, by themselves, that serving is a "hardship." The Third Department found as much in People v. Roblee, 70 A.D.3d 225 (3d Dep't 2009), when the trial court employed a very similar pre-screening procedure based on the same vague personal or business obligation the court 20 WHITE & CASE mentioned to prospective jurors in this case. In Roblee, the court asked potential jurors to raise their hands in response to a host of questions including, inter alia, if they had any "pressing personal or business reasons which could prevent them from serving." Id. at 229. Without asking any follow-up questions to "identify their specific problems and determine whether those individuals should remain in the pool or be excused," the court set those potential jurors aside and selected the jury from those who had not raised their hands. Id. The Third Department reversed, finding that this method "effectively excluded potential jurors without determining if they were unqualified or biased, and without permitting defendant to question them concerning their fitness to serve." Id. at 229-30. It resulted in a jury that was not chosen "at random from a fair cross-section of the community," in violation of Judiciary Law § 500. Id. In Roblee, the potential jurors' "vague answer" that they had "a family obligation or business commitment" that would "make it a real hardship" "did not establish whether [they] were partial or otherwise unqualified" and was improper. 70 A.D.3d at 229. Here, the prospective jurors were not called upon even to give a vague reason; they were allowed not to serve without giving the judge any reason at all. Bereft of any factual underpinning, the record in appellant's case invites speculation that some panelists may have evaluated mere inconvenience to be "hardship." Indeed, the court did not even offer any guidance as to what circumstances may rise to the level of hardship and, just as importantly, those that will not. Thus, its broad abdication of its responsibility undoubtedly allowed potential jurors whose "family obligation," "business commitment," "surgery," "ticket to go someplace that suddenly came up," or "surprise test" could have been accommodated while allowing them to serve to simply opt out completely. (Jury Selection Tr. 11 ). It is also entirely possible that, as routinely occurs during jury selection, some potential jurors mistakenly believed that their employer could penalize them for jury service, resulting in a "business commitment" they viewed as a perceived "hardship." That such prospective jurors were permitted to opt out of serving on appellant's jury at will is-at the most basic level-antithetical to the civic obligation embodied in jury service and its requirement of a fair cross-section of one' s peers. See Hildreth, 101 N.Y. at 239 ("It is ... the legal right of a party to have the jury selected from the competent names in the jury box" and that range of 21 WHITE&CASE selection "shall not be limited by excluding without cause competent jurors from the panel"). Thus, the court's improper narrowing of the jury pool here, based on the prospective jurors' own assessment, possibly with the concurrence of a clerk, "constituted a significant departure from the constitutionally protected, common- law judge and jury system." Hernandez, 94 N.Y.2d at 556. Moreover, such an error is not subject to harmless eiTor analysis. See People v. Anderson, 70 N.Y.2d 729, 730-31 (1987) ("To deny this defendant a chosen jury on an improper basis .. . is a deprivation of the constitutional right to a jury trial and harmless error analysis is therefore unavailable"); McQuade, 110 N.Y. at 306 ("[T]he legal right of a defendant in the selection of a jury, may be violated, although he may not be able to show that any of the jurors by whom he was tried were not fair or impartial"); Hildreth, 101 N.Y. at 239 (eschewing harmless error analysis). In holding otherwise, the Appellate Division cited, inter alia, People v. Casanova, 62 A.D3d 88 (1st Dep't 2009), in which the First Department concluded that a similar procedure did not constitute an improper delegation of judicial authority. But Casanova was wrongly decided and unpersuasive. First, Casanova entirely failed to acknowledge or even cite Toliver. Second, it affirmatively contravened Toliver inasmuch as it characterized the court's mass excusal of jurors as merely a "somewhat unorthodox preselection screening process" that did not implicate a defendant's constitutional right to a trial by jury, when Toliver makes no exception for any particular type or stage of jury selection procedure. Toliver's requirement of judicial supervision is categorical. See Velasco, 77 N.Y.2d at 473 (pre-voir dire excusal of potential juror is "a matter for the court"). More importantly, Casanova applied an incorrect mode-of-proceedings analysis. In finding no mode-of-proceedings error, the Casanova court reasoned that Casanova's "constitutional right to a jury trial was not impaired; at most, what was violated here was a statutorily prescribed jury selection procedure." 62 A.D.3d at 92. But the proper mode-of-proceedings analysis does not tum on whether a statutory or constitutional violation is at issue. See, e.g., People v. Kisoon, 8 N.Y.3d 129 (2007) (violation of C.P.L. § 310.30 is a mode-of- proceedings error). In any event, what was violated in appellant's case was not merely a statutory prohibition, but rather her right to have the judge act as "the ultimate arbiter of a prospective juror's fitness to serve." Toliver, 89 N.Y.2d at 84. 22 WHITE&CASE In sum, by allowing panelists to self-select as to whether they should be excused for "hardship," or even allowing a clerk to make that decision, the court in Appellant's case failed to retain control over the proceedings and abdicated its judicial function. Whether or not their perceived hardship was genuine and warranted excusal was a determination that required the court to exercise its discretion. By punting that decision to the jurors themselves or a clerk, the court relinquished its supervisory role, delegated its non-delegable judicial authority, and violated the mode of proceedings prescribed by law. Toliver, 89 N.Y.2d at 844; Ahmed, 66 N.Y.2d at 310. Accordingly, Appellant's conviction should be reversed and a new trial ordered. POINT II The Court Denied Appellant His Due-Process Right To A Fair Trial When It Left It "Up To The Jury" To Evaluate What Was A Foundational Prerequisite To Impeachment Of The Defense's Only Witness Testimony regarding a witness's prior omission is only permissible when it has first been established that the witness being impeached was actually asked a question that warranted a response or, if never asked such a question, that it was "most unnatural" for the witness not to have volunteered the response given the circumstances. People v. Savage, 50 N.Y.2d 673, 679 (1980), cert. denied, 449 U.S. 1016 (1980). Determining whether a witness's failure to volunteer information was "most unnatural" is a foundational prerequisite that is for the trial court to determine in its discretion before counsel can impeach a witness with an omission. Culhane, 45 N.Y.2d at 758-59. Here, the trial court failed to exercise any discretion whatsoever in assessing, as a matter of law, whether the People laid a proper foundation to impeach Black with his purported omission. Instead, the court allowed a rebuttal witness to take the stand under the mistaken belief that the critical foundational assessment was "up to the jury." But it was not. Unnaturalness was a foundational prerequisite to impeachment, and the trial court's failure to exercise its discretion in assessing that evidentiary requirement warrants reversal. While a witness may be impeached with a prior omission of critical facts that he or she later relates at trial, such impeachment may not be based simply on the omission of a fact itself or on the witness's failure to provide greater detail on the prior occasion. People v. Bornholdt, 33 N.Y.2d 75, 88 (1973). Rather, proper impeachment by a prior omission requires a showing that the witness's "attention 23 WHITE & CASE was previously called to the matter, and that he was specifically asked about the facts embraced in the question propounded at trial." Bornholdt, 33 N.Y.2d at 88. Insofar as the examining party fails to show that, at the time of the witness's original statement, the witness had been specifically asked about the facts surrounding the purported omission, the examining party fails to lay a proper foundation, and the impeachment may not proceed. Id. This Court has recognized a narrow exception to the Bornholdt rule, however, holding that, even if the witness has not been directly asked about the subject matter at issue, a party may still impeach that witness with his prior omission only if "the given circumstances make it most unnatural [for the witness] to omit" that information. Savage, 50 N.Y.2d at 679. Generally, the determination whether to admit evidence is a matter for the trial court's application of discretion based on an established standard. See People v. Carroll, 95 N.Y.2d 375, 385 (2000) ("Trial courts are accorded wide discretion in making evidentiary rulings."); People v. Walker, 83 N.Y.2d 455, 459 (1994) ("Because the trial courts have inherent power to control the scope of cross- examination and the use of prior bad acts is a generically accepted practice in that context, this Court will intervene only where the trial court has either abused its discretion or exercised none at all.") (internal quotations omitted) (emphasis added); People v. Williams, 56 N.Y.2d 236, 240 (1982) ("As Sandoval stated and subsequent decisions have reiterated, [impeachment] is an exercise of discretion that should be left to the trial court. But it is also an exercise of discretion that should be performed by the trial court.") (emphasis in original); People v. Dawson, 50 N.Y.2d 311, 322 (1980) (holding that the trial judge "must exercise his sound discretion" in cases involving impeachment through a failure to come forth with exculpatory evidence); People v. Duncan, 46 N.Y.2d 74, 80 (1978) (holding that admissibility of impeachment by omission "is entrusted to the sound discretion of the Trial Judge"). Moreover, the threshold issue of foundational sufficiency is a matter of law that is entrusted solely to the court. See Culhane, 45 N.Y.2d at 758- 59 ("Within the ambit of the trial court's responsibility was the preliminary factual determination that McGivern's statement of asserted innocence was not spontaneous so as to qualify it for admission under the exception to the hearsay rule."); People v. Marks, 6 N.Y.2d 67, 74-75 (1959) ("It is urged that the declaration should have been received in evidence in any event, and the question of its spontaneity submitted to the jury like the voluntariness of a confession . . . [This] is contrary to the practice in New York State, where the established rule is that it is for the court and not the jury to decide questions of fact preliminary to 24 WHITE&CASE determining the admissibility of evidence"); People v. Ludkowitz, 266 N.Y. 233, 239 (1935) ("Whether the preliminary proof advanced is sufficient to admit the receipt in evidence of a dying declaration presents in each case a question which must be determined by the trial judge"). Thus, where the trial court applies an incorrect evidentiary standard that requires jurors-not the court-to pass on the requisite foundational issue, it not only abuses its discretion but fails to exercise any discretion where it is required to do so. Cronin, 60 N.Y.2d at 432 (requiring judge to due to exercise discretion). The People never laid the proper foundation to impeach Black with a prior omission, and Justice Goldberg's failure to exercise his discretion in assessing that evidentiary requirement warrants reversal. A. The People Never Laid The Proper Foundation For Impeachment By Prior Omission The People never laid the proper foundation to impeach Black with his supposed prior omission. The prosecutor's line of questioning never established, pursuant to Savage, that it was unnatural under the circumstances for Black to have chosen not to volunteer information about Appellant's whereabouts at the time of the shooting. While Black testified that he knew that Appellant had been charged with the crime when he went to meet ADA Reeves (Tr. 183), he went on to explain that ADA Reeves did not give him an opportunity to provide any additional information about the incident, and that ADA Reeves halted the brief interaction without even bringing Black into his office. (Tr. 184-185). In addition, given that Black was repeatedly described by the prosecution as having been reluctant to cooperate with law enforcement from the outset of the investigation, it is hardly surprising that he chose not to unilaterally volunteer exculpatory information regarding the investigation during the brief interaction with ADA Reeves. (Tr. 58- 60) (leaving the scene as soon as police arrived); (Tr. 144) (hanging up on Detective Raymer when he called Black to discuss the shooting); (Tr. 227) (telling ADA Reeves he refuses to testify). Nor did ADA Reeves' later rebuttal testimony leading up to the impeachment line of questioning provide any such foundation. (Tr. 226-227). In particular, the prosecutor, on direct, simply never asked ADA Reeves whether he had questioned Black specifically about Appellant's whereabouts and thus did not comply with the foundational requirements of Bornholdt or Savage as a matter of law. (Tr. 226-227). Moreover, when asked, "[w]hat did [Black] tell you at that 25 WHITE 5. CASE time with respect to the incident," ADA Reeves' answer, at best, merely confirmed what Black had already admitted-that Black had not told ADA Reeves that Appellant was absent at the time of the shooting. (Tr. 227: 14-18). ADA Reeves' brief description of his conversation with Black was so vague that it cannot be said to have supported, let alone established, that Black's failure to volunteer any information was unnatural: THE PROSECUTOR: Do you know what Mr. Aderogba's street name is? ADA REEVES: His name is Black. THE PROSECUTOR: Now, on June 12th of 2012, did you have the occasion to meet with Black? ADA REEVES: Yes, I met him in the District Attorney's Office at about 9:30 quarter to 10. THE PROSECUTOR: What did Mr. Aderogba tell you at that time with respect to this incident? ADA REEVES: Among other things, he indicated to me that he would not testify in the proceeding. I had discussed with him the specifics, what he had seen and what he had heard and we discussed things of that nature. THE PROSECUTOR: Did he ever tell you that Ronell Jordan was not in the apartment at the time of the shooting? ADA REEVES: No, he did not. (Tr. 227). ADA Reeves portrayed an entirely minimal exchange with Black that ended abruptly due to Black's apparent discomfort with being called into the District Attorney's Office. (Tr. 201-204). Thus the meeting did not establish anything that the People were entitled to put before the jury. No inference that it was "unnatural" for Black not to unilaterally exonerate Appellant flowed from the interaction because it was clear that the conversation barely got off the ground. Savage, 50 N.Y.2d at 679. Even as far is it went, ADA Reeves never asked Black anything that compelled Black to speak up on Appellant's behalf. Absent a foundation, the People should not have been allowed to move forward with their 26 WHITE K CASE impeachment efforts on cross-examination, let alone call a rebuttal witness to the stand. B. The Trial Court Improperly Let the Jury Be the Final Arbiter Of Whether Black's Omission Was Unnatural, Even Though Unnaturalness Is A Foundational Evidentiary Question of Law Upon Which The Trial Court Was Required To Exercise Discretion The trial court misapplied the law regarding "unnatural omissions" by passing off to the jury the decision on whether it was "unnatural" for Black to not volunteer the exculpatory information to ADA Reeves during their brief interaction. Savage, 50 N.Y.2d at 679. The conference between Justice Goldberg and counsel conveys that Justice Goldberg believed that the issue of unnaturalness was for the jury to consider in determining whether Black might "naturally" have spoken up when at the police station. (Tr. 201-203). But Justice Goldberg was required to make that evidentiary determination-whether Black's omission was unnatural and thus he could be impeached-before ADA Reeves could be asked about the purported omission in question. Instead, Justice Goldberg believed that the foundational assessment was "up to the jury." (Tr. 203). At the conference between Justice Goldberg and counsel regarding potential rebuttal witnesses, the prosecutor stated that she anticipated ADA Reeves would "testify that he met with [Black] and that he never said that Ronell Jordan was not in the apartment." (Tr. 201). Although the prosecutor made no such indication in her offer of proof, Justice Goldberg stated that his belief was that ADA Reeves "will be able to give us more information" regarding what occurred at the meeting between Black and ADA Reeves. (Tr. 201-203). And, in seeming recognition of the "unnatural omission" standard for impeachment articulated in Savage and Dawson, Justice Goldberg reasoned that the jury could possibly conclude that Black "might be naturally [have been] expected" to provide the exculpatory information to ADA Reeves, even without being asked. (Tr. 202). He continued: Now, the witness says he was never asked about it and maybe that' s why he never said it, but on the other hand, because this was so important he might, it might have been reasonable and logical for the witness to have said it even if he wasn't asked about it. That's up to the jury. (Tr. 203). On those bases, and over the objection of defense counsel (Tr. 201 ; 203), Justice Goldberg permitted ADA Reeves to take the stand and testify as to his 27 WHITEO.CASE meeting with Black. (Tr. 205-206). It was not the jury's role, however, to determine whether Black's omission was unnatural for purposes of establishing admissibility on the basis of proper foundation. Rather, it is well-established that it is the role of the trial court to determine the admissibility of evidence, while it is the role of the jury to determine what, if any, weight is given to that evidence once it is admitted. Marks, 6 N.Y.2d at 74-75. By placing the jury in the "gatekeeper" role, Justice Goldberg allowed the People to side-step the traditional evidentiary hurdles that are in place to prevent parties from improperly impeaching witnesses. People v. Brown, 97 N.Y.2d 500, 505 (2002) (affirming the role of the trial judge as the ultimate gatekeeper of admissible testimony). Most notably, by misapprehending the relevant law, he failed to exercise any discretion on an important evidentiary issue. Walker, 83 N.Y.2d at 459; Cronin, 60 N.Y.2d at 432. * * * The improper impeachment of Black was anything but harmless. It allowed the People to wrongfully call into question the credibility of Appellant's only witness, while also wholly undermining Appellant's only defense- that he was not present in the apartment when Mr. Austin was shot. People v. Crimmins, 36 N.Y.2d 230, 237 (1975). By allowing the People to impeach Black without laying a proper foundation, the trial court traded Appellant's due-process rights, and his right to a fair trial, for evidence of minimal probative value on which the jury may have afforded great weight. See Dawson, 50 N.Y.2d at 322 (noting low probative worth of witness's prior silence, and concern for risk to defendant's due process and fair-trial rights). Furthermore, in summation, the prosecutor highlighted Black's failure to volunteer the exculpatory information to ADA Reeves, implying that Black's testimony regarding Appellant's whereabouts was fabricated on the eve of trial. (Tr. 277-278) (underscoring ADA Reeves' testimony and urging the jury to "disregard" all of Black's testimony in light of his purported omission). The prosecutor also improperly bolstered the credibility of ADA Reeves' testimony by pointing out that ADA Reeves "is an ADA he has no motivation to lie, no interest in this case." I d. Had the trial court properly understood the law to preclude the prosecutor's foundationless impeachment, the jury would have been able to fairly and independently evaluate Black's testimony without the taint of the improper evidence- the jury may very well have found that Black's testimony raised reasonable doubt regarding Appellant's participation in the shooting. 28 WHITE &CASE This issue was preserved when, in response to Appellant's objection, the trial court held that it was "up to the jury" to decide whether the Bornholdt threshold had been met. C.P.L. § 470.05(2); People v. Prado, 4 N.Y.3d 725 (2004). The court's failure to exercise its discretion also presents a reviewable question of law. Cronin, 60 N.Y.2d at 432 (erroneous failure to exercise discretion reviewable by Court of Appeals). The trial court wrongly allowed the People to impeach Black with his prior omission without ever laying a proper foundation. Furthermore, Justice Goldberg's misplaced belief that the assessment of unnaturalness was a question for the jury, as opposed to a foundational prerequisite upon which he was required to exercise discretion, reveals that he in fact made no assessment at all, and requires reversal. Cronin, 60 N.Y.2d at 432. POINT III The Court Deprived Appellant Of His Due-Process Right To A Fair Trial By Permitting The People To Present Highly Prejudicial Extrinsic Evidence Regarding Black's Alleged Attempt To Bribe Mr. Austin To Not Testify The trial court denied Appellant his right to a fair trial when it allowed the People to impeach Black with extrinsic evidence relating to an alleged offer to pay Mr. Austin to not testify at trial. Even when proffered extrinsic evidence is probative of bias, a trial court should limit such evidence that is either too remote or speculative to assist the triers of fact. People v. Barney, 277 A.D.2d 460, 460 (2d Dep't 2000) (concluding that excluded line of questioning was purely speculative). When defense counsel objected to the People calling Mr. Austin to testify about the alleged bribe, the trial court acknowledged the speculative nature of the allegations, stating, "[the bribery allegation] might be so bizarre that the jury would think it never happened." (Tr. 207). Likewise, the trial court recognized that the accusations would require the prosecution to "stretch it" to convince the jury that the bribery attempt "actually happened." (208). Mr. Austin did not bring these allegations to the attention of the prosecutor until midway through the trial, and even then, Mr. Austin was unable to provide any worthwhile detail regarding the nature of Black's alleged offer. Any probative value of stockpiling additional evidence of bias that was "so bizarre that the jury would think it never happened" was substantially outweighed by the risk of unfair prejudice to Appellant, whom the jury would likely believe to be the source of the alleged bribe. People v. Cook, 42 N.Y.2d 204, 208 (1977). 29 WHITE 5.. CASE CONCLUSION For all these reasons, and those outlined in Appellant's Second Department briefs, this Court should reverse Appellant's conviction and order a new trial. Respectfully submitted, ~:?-------- Kevin C. Adam James Trainor Louis O'Neill Pro bono Counsel for Defendant- Appellant WHITE & CASE LLP 1155 Avenue ofthe Americas New York, New York 10036 (212) 819-8200 Lynn W. L. Fahey Attorney for Defendant-Appellant APPELLATE ADVOCATES 111 JOHN ST., 9th Fl. New York, New York 10038 (212) 693-0085 30