The People, Respondent,v.Ronnell Jordan, Appellant.BriefN.Y.February 9, 2016To be Ar_gued by: KEVIN C: ADAM ( 10 MINUTES REQUESTED) .flttu ~ork &uprtmt «:ourt ~tllatt J)tbt•ton 6ttonb Jubitiall&tpartmtnt THE PEOPLE OF THE STATE OF NEW YORK Ronell Jordan Respondents, -against- Defendant-Appellant. : Kings County Ind. No. 8020111 AD2 No. 2012-10762 TO BE HEARD ON THE ORIGINAL RECORD BRIEF FOR DEFENDANT-APPELLANT 60: z d oc Nnr v 1 . . . :"tv J~ne Sl't3dd't : . lid ·\ro AJNno~ S!:l~ : w 0 )Aid33H Lynn W. L. Fahey Attorney for Defendant-Appellant APPELLATE AD~OCA TES Ill JOHN ST., 9 Fl. New York, N.Y. 10006 (212) 693-0085 Kevin C. Adam James Trainor Louis O'Neill Pro bono Counsel for Defendant- Appellant WHITE & CASE LLPu' : - 1155 Avenue ofthe ~ricas-r New York, New York t()036 2; (212) 819-8200 c z C 7 • .. · ~ rr-· ~ ~-v ".,..., ' ' . . . • .. ... SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondents, -against- Ronell Jordan, Defendant-Appellant. Ind. No. 8020/11 STATEMENT PURSUANT TO CPLR 5531 1. The Indictment Number in the trial court was 8020/11. 2. The full names of the parties are set forth above. There have been no changes. 3. This action was commenced in the Supreme Court, Kings County. 4. The action was commenced by the filing of an indictment. 5. This appeal is from a conviction of attempted assault in the first degree (P.L. §§ 110.00, 120.10), criminal possession of a firearm in the second degree (P.L. § 265.03), and robbery in the first degree (P.L. § 160.15). " hi 6. This is an appeal from a judgment rendered November J, 2012. 7. Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used. TABLE OF CONTENTS STATEMENT PURSUANT TO CPLR 5531 ............................................................................ 2 TABLE OF CONTENTS ............................................................................................................ 3 PRELIMINARY STATEMENT ................................................................................................ 5 QUESTIONS PRESENTED ....................................................................................................... 6 INTRODUCTION ...................................................................................................................... 7 STATEMENT OF FACTS ....................................................................................................... 12 Jury Selection ............................................................................................................................ 12 The People's Case ............................................................................................... ~ ..................... 13 The Incident .............................................................................................................................. 13 Identification of Shooter ........................................................................................................... 15 The Defense Case ..................................................................................................................... 16 Direct Examination ................................................................................................................... 16 Cross-Examination .................................................................................................................... 17 The People's Rebuttal Witnesses .............................................................................................. 20 ADA Reeves' Anticipated and Actual Testimony Regarding Mr. Jordan's Presence ............. 21 in the Apartment ....................................................................................................................... 21 Mr. Austin's Anticipated and Actual Testimony Regarding Black's Alleged Bribe ............... 24 Summation ................................................................................................................................ 28 Jury Verdict and Sentencing ..................................................................................................... 29 ARGUMENT ............................................................................................................................ 30 POINT I .................................................................................................................................... 30 The Trial Court Denied Appellant His Due-Process Right to a Fair Trial When It Allowed the People to Impeach the Defense's Sole Witness with an Alleged Prior Omission Without First Having Laid the Requisite Foundation ................................................... 30 A. The Use of a Prior Omission to Impeach the Defense's Sole Witness on Cross-Examination was Improper ......................................................... 31 B. Rebuttal Testimony to Impeach the Defense's Sole Witness Regarding His Prior Omission was Improper ............................................................... 37 C. The Improper Impeachment was Not Harmless and Denied Appellant His Due-Process Right to a Fair Trial ........................................................ .43 POINT II ................................................................................................................................... 45 Appellant was Deprived of His Due-Process Right to a Fair Trial When the Trial Court Allowed the People to Present Highly Prejudicial Extrinsic Evidence Regarding the Sole Defense Witness's Alleged Attempt to Bribe the Victim Not to Testify ............ .45 A. The Victim's Bribery Accusation was Unsubstantiated and Entirely Speculative ............................................................................................ 45 B. The Victim's Rebuttal Testimony Offered Scant Probative Value ................. .47 POINT III .................................................................................................................................. 51 The Court Improperly Abdicated its Judicial Function When it Permitted the Court's Clerk to Dismiss Prospective Jurors, Based on the Jurors' Own Subjective and Unquestioned Belief of a Hardship ...................................................................................................... 51 POINT IV .................................................................................................................................. 55 Appellant's Sentence of Fourteen Years Imprisonment is Excessive for a First-Time Offender ......................................................................... , .............................................. 55 CONCLUSION ......................................................................................................................... 56 CERTIFICATE OF COMPLIANCE ........................................................................................ 58 PRELIMINARY STATEMENT Appellant, Ronell Jordan, ("Mr. Jordan" or "Appellant") appeals from a judgment of the Supreme Court, Kings County, rendered on November 8, 2012, convicting him of attempted assault in the first degree, criminal possession of a weapon in the second degree, and robbery in the first degree, sentencing him fourteen years' imprisonment and five years' term of post-release supervision. (Sentencing Tr. 9:20-10:5). Appellant filed a timely notice of appeal. On February 27, 2013, this Court granted Appellant leave to proceed as a poor person and assigned Lynn W. L. Fahey, of Appellate Advocates, as counsel on appeal. At Appellate Advocates' request, White & Case LLP is acting as pro bono counsel. No stay has been sought pending appeal, and Appellant is incarcerated pursuant to the judgment discussed herein. Appellant had no codefendants in the trial court. 5 QUESTIONS PRESENTED 1. Whether the trial court erred when it allowed the People to impeach the defense's sole witness with an alleged prior omission, both on cross- examination and with the testimony of a rebuttal witness, without first laying a proper foundation for prior-omission impeachment. 2. Whether the trial court erred in admitting extrinsic evidence of the sole defense witness's alleged attempts to bribe the victim when the minimal prohibitive value of cumulative evidence of the witness's bias was substantially outweighed by the unfair risk that the alleged bribes would be attributed to Appellant. 3. Whether the trial court improperly delegated its judicial authority when it tasked a court clerk with the responsibility of evaluating, and ultimately excluding, potential jurors based on their own subjective beliefs ofhardship. 4. Whether Appellant's fourteen-year sentence was excessive given that the jury found him not guilty of attempted murder and he was a first-time-felony offender. 6 INTRODUCTION This Court should reverse Appellant's conviction and order a new trial for three reasons. First, the trial court denied Appellant his due-process right to fair trial when it allowed the People to improperly impeach the defense's only witness, both during cross-examination and with the testimony of a rebuttal witness, without first laying the requisite foundation for prior-omission impeachment. Next, the trial court wrongly allowed the People to impeach that same witness with allegations that he attempted to bribe the victim not to testify. Those late-breaking allegations, however, were wholly unsubstantiated, and any probative value of additional evidence regarding the witness's supposed bias was substantially outweighed by the likelihood that the jury would unfairly attribute the alleged bribe to Appellant. And third, by allowing potential jurors to opt out of jury service based on their own subjective beliefs of "hardship," subject only to the review of a court clerk outside of the courtroom, the trial court denied Appellant his due-process right to a fair trial by improperly delegating its judicial authority. In the wake of these errors, Appellant was convicted and sentenced to fourteen years in prison with five years of post-release supervision-an unduly harsh sentence given his first-time-felon status and the jury's verdict. 7 Appellant was indicted for attempted murder in the second degree and related crimes stemming from a shooting that occurred at a birthday party in a Brooklyn apartment. Although there were many people in the apartment on the night of the shooting, the only witness who identified Appellant as the shooter was the victim, Mr. Elijah Austin. Mr. Austin did not know Appellant's name and testified that he had only seen Appellant a few times prior to the shooting. At trial, the defense called only one witness, Mr. Bolade Aderogba, who was referred to by his nickname, "Black," throughout trial. Black testified that Appellant simply was not in the Brooklyn apartment when the victim was shot. As this he-said-she-said scenario played out a trial, Black's credibility was of the utmost importance. Over the objection of defense counsel, the trial court allowed the People to improperly impeach Black, both on cross-examination and with the testimony of two rebuttal witnesses. First, the People sought to impeach Black for failing to volunteer to law enforcement at an earlier time that Appellant was not present in the apartment the night of the shooting. On cross-examination, however, Black clearly explained that when he briefly met with the Assistant District Attorney regarding the case, Black was never asked if Appellant was in the apartment that night, and that once Black told the Assistant District Attorney that he did not see who shot Mr. Austin, the Assistant District Attorney abruptly ended the meeting. 8 Even so, the trial court allowed the People to impeach Black on cross-examination, and again through the testimony of the Assistant District Attorney as a rebuttal witness, regarding Black's failure to unilaterally volunteer that exculpatory information. Prior to launching into impeachment, however, the People simply never laid the proper foundation required to impeach Black with a prior omission under the standards set forth in Bornholdt and Savage. 1 Indeed, when later evaluating whether the People should be allowed to call ADA Reeves to the stand to rebut Black's testimony, the trial court acknowledged that, up until then, it was unclear if Black's omission was "unnatural" given the brevity of the conversation. The People's inability to lay a proper foundation should have brought a halt to Black's prior-omission impeachment. The trial court, however, allowed the People to continue. This error was fatal to Appellant's defense. Not only was Black's credibility improperly called into question, but the impeachment undercut Appellant's only defense-that Appellant was not present in the apartment when Mr. Austin was shot and thus could not have been the shooter. 1 People v. Bornholdt, 33 N.Y.2d 75, 88 (1973) (requiring counsel to establish that a witness's "attention was previously called to the matter, and that he was specifically asked about the facts embraced in the question propounded at trial" prior to impeaching the witness with a prior omission); People v. Savage, 50 N.Y.2d 673, 679 (1980) (allowing, in narrow circumstances, counsel to impeach a witness who was not directly asked about the subject matter at issue with a prior omission only when "the given circumstances make it most unnatural [for the witness] to omit" that information). 9 Next, the People sought to impeach Black again, this time by calling Mr. Austin back to the stand to allege that Black had offered him $10,000 not to testify at Appellant's trial. Although the bribery attempt allegedly took place months prior, Mr. Austin conceded that he never brought the bribe to the attention of law enforcement or the Assistant District Attorney until midway through the trial. Defense counsel strenuously objected to allowing Mr. Austin to testify regarding the late-breaking bribery allegations, arguing that the allegations were wholly unsubstantiated and that there was a strong likelihood that the jury would unfairly attribute the bribe to Appellant. But the trial court overruled defense counsel's objection, reasoning that although the allegations "might be so bizarre that the jury would think [the bribery offer] never happened," the People could try to "stretch it" and convince the jury "it actually happened" because, if believed, the bribe could expose Black's bias. Notwithstanding that the People had already highlighted Black's alleged bias with testimony from three other witnesses, as well as Mr. Austin himself, the trial court failed to acknowledge that this additional evidence of bias had minimal probative value and, more importantly, was substantially outweighed by the likelihood that the jury would unfairly attribute that bribe to Appellant. Although the trial court overruled defense counsel's 10 strenuous objections regarding Mr. Austin's late-breaking and prejudicial bribery accusations, it acknowledged that its decision was one "[t]or appellate review." The trial court also improperly delegated its responsibility to evaluate, and ultimately exclude, potential and otherwise-competent jurors to its court clerk. During the jury-selection process, the trial court asked potential jurors who believed they would suffer a hardship by serving on the jury to raise their hands. Those who raised their hands were asked to step outside of the courtroom to speak to the court's clerk. Neither Appellant nor. defense counsel was present when these "opt out" jurors were assessed, and ultimately excluded, by the court's clerk. And there simply is no record of these conversations. By delegating the evaluation of these otherwise-competent jurors to the court's clerk, outside of the presence of Appellant, the trial court improperly delegated its judicial authority and thus committed a mode-of-proceedings error. Furthermore, as a result of this error, Appellant was tried before a jury made up only of jurors who self-identified as being able and willing to serve-that is, an all-volunteer jury. Despite these errors, Appellant, a first-time felony offender, was found not guilty of attempted murder in the second degree. He was, however, convicted of attempted assault in the first degree, criminal possession of a firearm in the second degree, and robbery in the first degree. The trial court sentenced Appellant to 11 fourteen years in prison with five years of post-release supervision. In light of Appellant's first-time-felon status, as well as the jury's decision to convict him of attempted assault instead of attempted murder, the trial court's sentence was unduly harsh. STATEMENT OF FACTS On June 6, 2011, Elijah Austin ("victim" or "Mr. Austin") was shot as he attempted to leave a birthday party in Apartment 4-A at • Sterling Place in Brooklyn, New York. (Tr. 56:19-57: 15). The police arrested the Defendant- Appellant, Ronell Jordan on September 14, 2011 in connection with the shooting. (Tr. 39: 19-23). The Honorable Joel Goldberg, Supreme Court, Kings County, presided over the matter, and scheduled trial to begin on October 25, 2012. Jury Selection On October 25, 2012, at the outset of jury selection, Justice Goldberg explained to prospective jurors that "if it's a real hardship to be here, I can excuse you. . . . If I excuse you because you have a hardship, you will have to speak to the clerk .. .. " (Jury Selection Tr. 11: 19-22). Justice Goldberg defined "hardship'' as "family obligation, a business commitment, surgery, a ticket to go someplace that suddenly came up, a students [sic] and you have a surprise test." (Jury Selection Tr. 11 :7 -9). The court then asked that any prospective juror who believed he or 12 she had a hardship to raise his or her hand. (Jury Selection Tr. at 12:1 0-22). The judge asked those who raised their hands to "step in center aisle," and advised them that the "clerk will speak to you outside." (Jury Selection Tr. at 12:23-24). Justice Goldberg did not ask any such prospective juror to explain his or her hardship in open court. (Jury Selection Tr. 12:6-13:6). Through this process, at least some prospective jurors- it is not clear how many- were excused from service. (Jury Selection Tr. 12:10-11; 12:25). 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 Park Place, where a group of people was celebrating Black's birthday. (Tr. 77:17-78:18). According to Mr. Austin, he and Black were "close friends" at the time. (Tr. 77:23-78:1). Mr. Austin testified that the group le.ft the Park Place apartment and later went to another apartment located at • Sterling Place. (Tr. 78:18-25; 116:14-17). Mr. Austin explained that around 11 :OOPM, he played a dice game with a man he knew only as "Rah" in apartment 4-A. (Tr. 84:9-13; 91: 15-16). Mr. Austin said that Rah had lost in the dice game 13 and was unable to borrow money from anyone else, so Mr. Austin stopped playing the game and decided to leave the party. (Tr. 89:16-91:4). Mr. Austin explained that before he could leave the apartment Rah approached him in the hallway, holding a gun, and told him to drop his money on the floor. (Tr. 91:17-92:16). Mr. Austin testified that he pulled the money out of his pockets and dropped it on the floor, but as he bent down to pick it back up, Rah·shot him in the chest. (Tr. 92:13; 94:1-3, 94:4-7). 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. 95:16-18). After Mr. Austin was shot, Black came to his aid and carried him downstairs and out of the apartment building. (Tr. 96:13-18). The police arrived shortly thereafter, and found Black holding Mr. Austin outside of • Sterling Place. (Tr. 57-58) (testimony of Officer Nicholas Altizer-Mercado). Officer Altizer- Mercado, one of the officers who first arrived on the scene, later testified that although Black provided officers with his identification, Black refused to cooperate with police or provide them any information regarding the shooting (Tr. 59:3-60:1, 65:3-66:3) (noting Black "immediately left the crime scene" after being asked his name and refused to provide additional information). An ambulance transported 14 Mr. Austin to Brookdale Hospital for medical treatment. (Tr. 72) (testimony of Officer James Samuels). Identification of Shooter According to Detective Carl Raymer, 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. 146-147). Detective Raymer reached out to Black regarding the shooting, but Black allegedly refused to cooperate and hung up the phone. (Tr. 143-144). Mr. Austin indicated that he generally knew who Mr. Jordan was because they both lived in the same apartment building. (Tr. 85-86). Mr. Austin also testified that he had only known Mr. Jordan for about a year at the time of the shooting, and within that period had only seen Mr. Jordan six or seven times, although Mr. Austin knew two of Mr. Jordan's brothers, had shot dice with Mr. Jordan before, and once attended a party with him. (Tr. 85-86, 105, 108:14-105- 15). Mr. Austin testified that, after the incident, he learned that "Ronell Jordan" was the legal name of man he had known only by the street name "Rah." (Tr. 79:16-80:1; 84:16-22). Following an investigation, Detective Richard Farrina arrested Mr. Jordan on September 14, 2011. (Tr. 39:16-21). In open court, Mr. Austin identified Mr. Jordan as the man he knew as Rah. (Tr. 79:8-15.) 15 On the stand, Austin acknowledged having previously been in possession of a gravity knife and hopping a subway turnstile without paying. (Tr. 75-77). He also admitted that a few days before testifying, he was arrested for having marijuana in his mother's car and plead guilty to a violation in connection with that offense. (Tr. 132). Because the arrest had "slipped [his] mind," Mr. Austin only mentioned this offense to the trial assistant after Mr. Austin had left the stand; he had to be called back to acknowledge this new case in front of the jury. (Tr. 132:1- 134:13). The Defense Case Direct Examination On November 5, 2012, the defense called Bolade Aderogba, or "Black," as its sole witness. (Tr. 159:3). On direct examination, Black testified that he has known Mr. Jordan for a couple of years and Mr. Austin for approximately four years. (Tr. 159:22-160:6). Black testified that, 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. 162:4-17). While he agreed that Mr. Austin was with the group earlier that evening, Black unequivocally testified that Mr. Jordan was not present at the apartment when the shooting took place. (Tr. 162:21-163:6; 165:3-7). 16 Black testified that he was in the apartment when Mr. Austin was shot, but Black 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. 163:7-19). 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. 163:20-21). When the police arrived, they asked Black what had happened, and he told the police that he "didn't know what happened." (Tr. 164:2-8). 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 Mr. Jordan, who was only the younger brother of one of Black's friends. (Tr. 170:21- 171:18; 176:25-177:2). In fact, Black testified that, after the shooting, he went straight to the hospital and snuck into the intensive-care unit to be with Mr. Austin. (Tr. 179:7-180:7). By contrast, Black testified that he had no personal interest in whether Mr. Jordan 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. 171:19- 172:2). Additionally, Black explained that, despite his relationship with both Mr. 17 Austin and Mr. Jordan, he never attempted to persuade Mr. Austin not to testify at trial. (Tr. 185:23-186:1). Black also clarified on cross-examination that although Mr. Jordan 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 apartment 4-A at Sterling Place. (Tr. 181:4-182:9). Black testified that Mr. Jordan was not one of the people who went to the Sterling Place apartment. (Tr. 182:7-9). In an attempt to impeach Black on the issue of Mr. Jordan's whereabouts, Assistant District Attorney Caryn Stepner ("ADA Stepner") questioned Black regarding a brief discussion he had on June 12, 2012 with an Assistant District Attorney Kyle Reeves ("ADA Reeves"). (Tr. 182:10-24). Black explained that he was summonsed to testify at trial and included in his summons was a letter from ADA Reeves asking Black to meet ADA Reeves to discuss the case. (Tr. 182:10- 24); see also (Tr. 226:22-227:1) (noting ADA Reeves attached a letter to Black to the subpoena). With respect to the discussion with ADA Reeves, ADA Stepner only asked Black whether he met with ADA Reeves on June 12, and whether ADA Reeves "interviewed [him] briefly about the shooting." (Tr. 182:22-183 :7). Black responded affirmatively to both questions. (Tr. 182:22-183:7). ADA Stepner then 18 impeached the witness with his apparent onusswn, over defense counsel's objection, by pointing out that Black never told ADA Reeves during their brief discussion that Mr. Jordan was not present in apartment 4-A when the shooting occurred. (Tr. 183:8-184:5). Black responded that he did not, but explained that ADA Reeves only asked him whether he had seen who had shot Mr. Austin, and did not question him as to Mr. Jordan's presence at the apartment that evening. (Tr. 183:11-184:16). Black further testified that, although he knew that Mr. Jordan was being accused of shooting Mr. Austin, Black was never given the opportunity to volunteer information about Mr. Jordan'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: 17-185 :5). ADA Stepner never affirmatively asked Black whether ADA Reeves had questioned him about Mr. Jordan's presence on the evening of the shooting. Over the objection of defense counsel, the trial court allowed ADA Stepner to continue to impeach the witness regarding his decision not to divulge this information to ADA Reeves. (Tr. 183:17-185:12). Over the course of his testimony, Black, who had a youthful-offender adjudication stemming from the burglary of a deli, acknowledged that he violated his probation in that matter when he was later found in possession of marijuana. 19 (Tr. 165:8-166:11). He also acknowledged visiting Mr. Jordan in prison, attending one of Mr. Jordan's pretrial proceedings, and talking to Mr. Jordan's family about the case. (Tr. 166:20-167, 173:15-174:3). During cross-examination, Black also pointed out that he was closer to Mr. Jordan's brothers than he was Mr. Jordan (Tr. 171:5-10) 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 court suspended the trial for the day. (Tr. 189:23-24). When the trial resumed two days later, Justice Goldberg held a conference with ADA Stepner and defense counsel, during which they discussed the anticipated testimony of two witnesses whom the People anticipated calling to impeach Black. (Tr. 200:21-208:20). First, the People intended to call ADA Reeves to testify, inter alia, that during their brief interaction, Black never told ADA Reeves that Mr. Jordan was not present in apartment 4-A when Mr. Austin was shot. (Tr. 201:15-17). Next, the People intended to recall Mr. Austin to testify that, earlier that year, Black had allegedly attempted to bribe Mr. Austin not to testify at trial, though Mr. Austin never told ADA Stepner about the alleged bribe until after Black had testified. (Tr. 204:4-16). Defense counsel objected to the testimony of both witnesses. (Tr. 201:7-8; 203:14-15; 207:5-10; 208:10-17). 20 ADA Reeves' Anticipated and Actual Testimony Regarding Mr. Jordan'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 purported omission: THE COURT: What is the offer of proof to Mr. Reeves? MS. STEPNER: ... [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. 21 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 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. 201:9-203: 15). 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. 205:23-206:2). The People called ADA Reeves to testify. (Tr. 223:22-23). 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. 226:22- 227:8). ADA Reeves further testified that, during their meeting, he had "discussed with [Black] the specifics, what he had seen and what he had heard and we 22 discussed things of that nature" relative to the shooting. (Tr. 227:8-13). ADA Reeves, however, did not provide any specific detail regarding his brief interaction with Black, nor did ADA Stepner ask any questions about the conversation. Id. Following ADA Reeves' description of the interaction, ADA Stepner asked ADA Reeves whether Black told him that Mr. Jordan was not in the apartment at the time of the shooting, to which ADA Reeves responded, ''No, he did not." (Tr. 227:14-16). Again, ADA Stepner did not ask whether ADA Reeves had discussed with Black whether Mr. Jordan was present at the apartment that night, nor did she ask any other questions regarding the details of their conversation. (Tr. 227:2-18). ADA Stepner's only relevant question on direct examination was: "What did [Black] tell you at that time with respect to the incident?" (Tr. 227:8-9) On cross-examination, unlike ADA Stepner, defense counsel did inquire if ADA Reeves asked Black if Mr. Jordan was present in the apartment on the night of the shooting. (Tr. 229:5-7). ADA Reeves responded that he did not specifically ask Black whether Mr. Jordan was in the apartment. Id. Instead, ADA Reeves claimed that he only asked Black who actually was present in apartment 4-A that night. (Tr. 229:2-13). 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 apartment." (Tr. 229:7-10). The entire interaction was 23 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. 231:6-11 ). 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? MS. STEPNER: ... [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? MS. STEPNER: Right. THE COURT: This is all because purportedly Black is friendly with the defendant? MS. STEPNER: 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, 24 you know, maybe has committed an uncharged crime of an attempt to intimidate witnesses. MR. SHEINBERG: Or bribery. 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'll 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. MS. STEPNER: That's not my position. 25 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. 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. 204:3-208:20). Following ADA Reeves' testimony, the People recalled Mr. Austin. (Tr. 232:8-9). During direct examination, Mr. Austin testified that, on three or four occasions, Black had attempted to persuade him not to testify at Mr. Jordan's trial. (Tr. 233:8-18). Mr. Austin also testified that Black had offered him money not to testify. (Tr. 233:19-234:3). Following this statement, Justice Goldberg instructed 26 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. 234:4-8). 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 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. (Tr. 234:9-21). During cross-examination, when asked how much money Black had offered him, Mr. Austin replied, "[l]ike $10,000." (Tr. 237:19-20). Mr. Austin could not recall the precise date of this conversation with Black, but did say that it occurred during the summer of2012. (Tr. 238:9-17.) Although Mr. Austin knew he would be testifying at trial, he conceded that he did not reveal the alleged bribery attempt to ADA Stepner or any law-enforcement officer until two days earlier, on November 5, 2012, when he raised the issue to ADA Stepner on the telephone following his trial testimony. (Tr. 239:12-241:7). *** 27 The People also called Dr. Jonathan Landon, a surgical resident at Brookdale hospital, who described Mr. Austin's internal injuries as "significant." (Tr. 215:2- 5). 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. 21 7: 12-218: 7). Summation On summation, ADA Stepner highlighted Black's failure to volunteer to ADA Reeves that Mr. Jordan was not present in the apartment the night Mr. Austin was shot. (Tr. 277:4-278:11). ADA Stepner explained that Black's testimony was rebutted by ADA Reeves, who is "an ADA[;] he has no reason to lie." (Tr. 277:6- 1 0). Furthermore, ADA Stepner 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. 277:9-15). Arguing that Black's cross- examination and ADA Reeves' testimony revealed that Black's was untruthful, ADA Stepner urged the jury to disregard Black's testimony in its entirety. (Tr. 278:4-24). 28 Jury Verdict and Sentencing On November 8, 2012, the jury found Mr. Jordan 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. 332:24-335:19). Prior to sentencing, ADA Stepner recounted Mr. Austin's injuries, arguing that the seriousness of the injuries warranted fifteen years' imprisonment with five years' post-release supervision. (Sentencing 6:15-17; 15:21-24). Although Mr. Jordan was found not guilty of attempted murder, ADA Stepner returned to the theme of murder, stating, "If his aim was a little bit higher, he would be facing murder charges." (Sentencing Tr. 6:19-21). Defense counsel argued that Mr. Jordan lacked a serious criminal background that would warrant such a substantial sentence. (Sentencing Tr. 7:6-8:19). Although Mr. Jordan had a youthful adjudication and various misdemeanor convictions, defense counsel explained that Mr. Jordan had not been previously convicted of any felony, and thus a combined sentence of twenty years was unduly harsh. (Sentencing Tr. 7:20-25). Mr. Jordan also offered an apology to Mr. Austin for what had happened to him but did not acknowledge that he was the shooter. (Sentencing 8:22-9:2).2 2 Mr. Jordan also plead guilty to a misdemeanor trespass charge at sentencing and received a conditional discharge. (Sentencing Tr. 3-4). 29 Justice Goldberg then sentenced Mr. Jordan on all charges to fourteen years' imprisonment, plus five years' post-release supervision, with the sentences to run concurrently. (Sentencing Tr. 9:20-10:5). This timely appeal followed. ARGUMENT POINT I The Trial Court Denied Appellant His Due-Process Right to a Fair Trial When It Allowed the People to Impeach the Defense's Sole Witness with an Alleged Prior Omission Without First Having Laid the Requisite Foundation The trial court improperly allowed ADA Stepner to impeach Black without laying the proper foundation required to impeach a witness with a prior omission. ADA Stepner's use of Black's alleged prior omission-failing to volunteer to ADA Reeves that Mr. Jordan was not in the apartment when the shooting took place-to impeach Black's credibility was only proper if, before confronting him with the omission, ADA Stepner established either (1) at the time of the omission, ADA Reeves had specifically questioned Black as to his knowledge of Mr. Jordan's whereabouts at the time of the shooting; or (2) that it was unnatural for Black not to unilaterally volunteer that exculpatory information. ADA Stepner did neither. Thus, the trial court twice denied Mr. Jordan his due-process right to a fair 30 trial-first, when it improperly allowed ADA Stepner to impeach Black on cross- examination, and again when it permitted the People to call ADA Reeves to the stand as a rebuttal witness. A. The Use of a Prior Omission to Impeach the Defense's Sole Witness on Cross-Examination was Improper While a witness may be impeached with his prior omission of critical facts that he 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); People v. Selman, 55 A.D.3d 638, 639 (2d Dep't 2008). Rather, proper impeachment by a prior omission requires a showing that the witness's "attention 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. See People v. Jones, 136 A.D.2d 740, 741 (2d Dep't 1988). 31 During direct examination, Black, the defense's only witness, testified that Mr. Jordan was not present at the time that Mr. Austin was shot. (Tr. 162:21- 163:6; 165:3-7). On cross-examination, ADA Stepner asked only two questions regarding this issue before attempting to impeach Black. First, ADA Stepner asked Black if he had met with ADA Reeves on June 12, 2012, and Black responded that he had. (Tr. 182:16-24). Next, she asked Black whether ADA Reeves had "interviewed [him] briefly about the shooting" during that meeting, and Black agreed that he had. (Tr. 183:5-7). Without more, ADA Stepner's very next question was an attempt to impeach Black. (Tr. 183:8-10) ("And you never, sir, you never told [ADA] Reeves during that interview that the defendant was not present in the apartment, did you?"). At this point, it is undisputable that ADA Stepner had not met the foundational requirement for impeachment by prior omission under Bornholdt. Indeed, nothing about ADA Stepner's questions or Black's responses established that ADA Reeves had asked Black whether Mr. Jordan was present in the apartment that evening. Nor did ADA Stepner's continued cross-examination provide any such foundation-quite the opposite, actually. When ADA Stepner asked Black the question again, Black's response established that ADA Reeves had never questioned Black about Mr. Jordan's whereabouts that evening. (Tr. 183:22- 32 184:16). Even Justice Goldberg seemed to observe that Black's testimony effectively established that ADA Stepner lacked foundation to impeach Black with the purported prior omission. (Tr. 183:13-15) ("THE COURT: ... [Y]ou're asking him what he never said and you never put it in context. I'll let the witness put it in context."). Thus, Black's response should have brought an immediate halt to ADA Stepner's impeachment efforts. See Jones, 136 A.D.2d at 741. The Court of Appeals has recognized a narrow exception to the Bornholdt rule, 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, but only if "the given circumstances make it most unnatural [for the witness] to omit" that information. People v. Savage, 50 N.Y.2d 673, 679 (1980), cert. denied, 449 U.S. 1016 (1980); see also People v. Dawson, 50 N.Y.2d 311, 311 (1980). Additionally, when the attempted impeachment concerns a defense witness's prior failure to come forward with exculpatory information, as was the case here, the examining district attorney must lay a proper foundation for impeachment byalso demonstrating that the witness: (1) was aware of the nature of the charges against the defendant; (2) had reason to know that he had exculpatory information; (3) had a reasonable motive to act to exonerate the defendant; and (4) was familiar with the 33 means to make that information available to law enforcement. Dawson, 50 N.Y.2d at 321 n. 4.3 But ADA Stepner's line of questioning-prior to and even after the impeachment-never established, pursuant to Savage and Dawson, that it was unnatural under the circumstances for Black to have chosen not to volunteer information about Mr. Jordon's absence at the time of the shooting. Although ADA Stepner elicited testimony from Black that he knew, at the time of his meeting with ADA Reeves, that Mr. Jordan had been charged with shooting Mr. Austin, she did so only after impeaching him. (Tr. 183:17-21 ). Additionally, while it had arguably been shown that Black had reason to know that he had exculpatory information, there was absolutely no showing at this point in the cross- examination that Black either had a reasonable motive to act to exonerate Mr. Jordan or was able to make the exculpatory information available to law enforcement. See Dawson, 50 N.Y.2d at 321 n. 4. 3 Notably, this Court has seldom recognized the "unnatural omission" exception to the Bornholdt prior-omission foundational rule. See, ~ Dawson, 50 N.Y.2d at 3 I 7 (collecting cases); Selman, 55 A.D.3d at 639; People v. Keys, 18 A.D. 3d 780, 781 (2d Dep't 2005); People v. Singh, 249 A.D.2d 338; People v. Nazario, 235 A.D.2d 436, 436 (2d Dep't 1997). The Second Department's underlying rational has been stated as follows: The law is clear that the prosecution may not comment upon the post arrest silence of a defendant and that a defendant has no obligation, when in custody, to tell either the police or the District Attorney that he has an alibi or other exculpatory defense .... Likewise, an alibi witness has no obligation to come forward and contact the police or the District Attorney; such silence by an alibi witness may not be used as a means of discrediting the witness, either upon cross-examination or during the People's summation. Dawson, 50 N.Y. 2d at 317 (quoting People v. Smoot, 59 A.D.2d 898, 899 (2d Dep't 1977)). 34 Prior to impeachment, Black's testimony established that, at the time of the shooting, his relationship with Mr. Austin was much closer than his acquaintanceship with Mr. Jordan. (Tr. 170:21-172:2; 176:25-177:2; 179:7-180:7). In fact, Black testified that he had no personal interest in what happened to Mr. Jordan relative to the accusations against him. (Tr. 171:19-172:2). Absent some sufficiently close personal relationship or concern for Mr. Jordan, and in light of his close friendship with Mr. Austin, there could be no inference that Black would have been motivated to act to exonerate Mr. Jordan. See Dawson, 50 N.Y.2d at 321.4 Moreover, ADA Stepner made no attempt to first establish this connection before launching into her impeachment attempts. In fact, almost immediately after impeachment, Black testified that he had no opportunity to tell ADA Reeves that Mr. Jordan was not present at the apartment that evening because, after Black told ADA Reeves that he did not see who had shot Mr. Austin, ADA Reeves did not question Black further and halted the brief interaction without even bringing Black into his office. (Tr. 184:17-185:5). If ADA Reeves, the person preparing the case against Mr. Jordan, was not interested in questioning Black as to Mr. Jordan's 4 In Dawson, the Court of Appeals observed that, while the inference that may be drawn from a defendant's silence, in light of due-process considerations, may be highly prejudicial, "[t]he same cannot always be said for an ordinary witness who may have no personal stake in remaining silent and who, indeed, may very well have a personal interest in speaking up in order to aid the defendant. It is this interest in speaking up which, in a given case, may render the witness' failure to do so of probative worth when used to impeach his or her testimony." Dawson, 50 N.Y.2d at 321. 35 presence in the apartment that evening, there simply was no other law-enforcement official to whom Black could have volunteered this information. Furthermore, 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. 58:24-60:1) (leaving the scene as soon as police arrived); {Tr. 144:3-12) (hanging up on Detective Raymer when he called Black to discuss the shooting); (Tr. 227:10-13) (telling ADA Reeves he refuses to testify). And his decision not to volunteer that information is not unusual. As the Court of Appeals explained in Dawson, "there may be explanations for the witness' prior silence which are entirely consistent with the witness' position at trial. Some individuals, for example, may routinely avoid contact with law enforcement authorities out of an ingrained sense of fear or mistrust of officialdom." Dawson, 50 N.Y.2d at 321. Indeed, the prosecution should not have been permitted to use Black's silence as both a shield and a sword-on the one hand, arguing that Black was evasive and reluctant to cooperate with law enforcement, while on the other, ignoring that very characteristic in regard to whether his failure to volunteer exculpatory information should have been considered "most unnatural." Savage, 50 N.Y.2d at 679. 36 By allowing ADA Stepner to continue her impeachment attempts without first laying the proper foundation required to impeach a witness with a prior omission, the trial court improperly allowed the prosecution to destroy Black's credibility, while also wholly undermining Mr. Jordan's sole defense at trial-that he was not present at the apartment when the shooting took place. B. Rebuttal Testimony to Impeach the Defense's Sole Witness Regarding His Prior Omission was Improper. The trial court improperly granted ADA Stepner a second bite at the impeachment apple when it allowed ADA Stepner, over defense counsel's objection, to call ADA Reeves as a rebuttal witness. During a conference between Justice Goldberg and counsel regarding potential rebuttal witnesses, ADA Stepner merely stated that she anticipated ADA Reeves to "testify that he met with [Black] and that he never said that Ronell Jordan was not in the apartment." (Tr. 201:9- 17). Although ADA Stepner 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" as to what occurred at the meeting between Black and ADA Reeves. (Tr. 201:9-22; 202:3-203:13). 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 37 naturally [have been] expected" to provide the exculpatory information to ADA Reeves, even without being asked. (Tr. 202:3-16). 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. 203:8-13). On those bases, Justice Goldberg permitted ADA Reeves to testify as to his meeting with Black. (Tr. 205:23-206:2). The trial court erred in several respects. First, ADA Stepner's offer of proof for ADA Reeves' testimony on this issue consisted only of his anticipated testimony that Black never told ADA Reeves that Mr. Jordan had not been in the apartment. But Black had already admitted as much during cross-examination, explaining that he had not given ADA Reeves that information because ADA Reeves had not questioned him regarding Mr. Jordan's whereabouts that night. (Tr. 183:8-185:7). Therefore, the admission of extrinsic evidence of Black's omission solely for impeachment purposes was cumulative and thus should have been excluded. People v. Conroy, 102 A.D.3d 979, 980-81 (2d Dep't 2013) (holding no abuse of discretion in excluding, for impeachment purposes, extrinsic evidence of witness's prior statement omitting certain information, where witness 38 did not deny omission and explained discrepancies, as such evidence would have been cumulative). Second, for the reasons articulated above, at the time Justice Goldberg ruled to allow ADA Reeves' testimony, ADA Stepner still had not laid a proper foundation that would permit her to impeach Black with a prior omission. Nor did ADA Reeves' testimony leading up to the impeachment line of questioning provide any such foundation. (Tr. 226:13-227:13). In particular, ADA Stepner did not ask ADA Reeves whether he had questioned Black specifically about Mr. Jordan's whereabouts and thus did not comply with the foundational requirements of Bornholdt. (Tr. 226:13-227:18). And no other testimony provided by ADA Reeves supported any of the four foundational factors articulated in Dawson. I d. Moreover, when asked, "[w]hat did [Black] tell you at that 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 Mr. Jordan 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: ADA STEPNER: Do you know what Mr. Aderogba's street name is? ADA REEVES: His name is Black. 39 ADA STEPNER: 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. ADA STEPNER: 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. ADA STEPNER: 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. 227:2-16). It was not until defense counsel's cross-examination of ADA Reeves-well after the trial court erred in permitting ADA Stepner to impeach Black-that ADA Reeves testified that he had asked Black who was present in the apartment that night, to which Black had responded that he could not remember exactly who was there. (Tr. 229:2-13). Even so, ADA Reeves admitted that he never specifically asked Black whether Mr. Jordan was in the apartment. (Tr. 229:5-7). In sum, ADA Reeves portrayed an entirely minimal exchange with Black that ended abruptly due to Black's understandable discomfort with being called into the District Attorney's Office. Therefore, the meeting did not establish 40 anything that the People were entitled to put before the jury. No inference that it was "unnatural" for Black not to unilaterally exonerate Mr. Jordan flowed from the interaction because it was clear that the conversation barely got off the ground. Even so far is it went, ADA Reeves never asked Black anything that compelled Black to speak up on Mr. Jordan's behalf. Finally, the trial court misapplied the law regarding "unnatural omissions" by leaving to the jury the decision as to whether it was "unnatural" for Black to not volunteer the exculpatory information to ADA Reeves during their brief interaction. The transcript of the conference between Justice Goldberg and counsel suggests that Justice Goldberg believed that the factors articulated in Dawson were for the jury to consider in determining whether Black might "naturally" have spoken up. This is a clear misapplication of law. When offered to impeach a witness's testimony, whether an omission was unnatural is matter bearing upon its admissibility-an issue for the trial court to determine, not the jury. See Savage, 50 N.Y.2d at 679; People v. Bradley, 99 A.D.3d 934, 937 (2d Dep't 2012) ("evidence of inconsistent statements is often collateral to the ultimate issue before the [trier of fact] and bears only upon the credibility of the witness, its admissibility is entrusted to the sound discretion of the Trial Judge.") (internal quotation marks and citation omitted). 41 More simply, it was not the jury's role to determine whether Black's omission was unnatural for purposes of establishing admissibility on the basis of proper foundation. Indeed, 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. The trial court took the opposite approach. 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. Furthermore, Judge Goldberg's decision to allow ADA Reeves to take the stand, in hopes that his testimony could supply more information about the conversation with Black, also reveals that Judge Goldberg had yet to determine, even after cross-examination, that the People had established Black's omission was unnatural-a prerequisite to being able to impeach a witness under Savage. 50 N.Y.2d at 679. Stated another way, Judge Goldberg allowed ADA Reeves to take the stand to supply the "unnaturalness" foundation that was absent from the People's cross-examination of Black. Id. Judge Goldberg's wait-and-see approach to evaluating the appropriateness of impeachment is simply unsupported by law. Based on the trial court's belief that determining whether an omission was unnatural, and thus whether evidence is or is not admissible, is a question for the 42 jury, the People were allowed a free pass to impeach Black on cross-examination without ever laying proper foundation under Bornholdt or Savage. C. The Improper Impeachment was Not Harmless and Denied Appellant His Due-Process Right to a Fair Trial The improper impeachment of Black was anything but harmless. It allowed the People to wrongfully call into question the credibility of Mr. Jordan's only witness, while also wholly undermining Mr. Jordan'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 Mr. Jordan's due-process rights, and his right to a fair trial, for evidence of minimal probative value on which the jury undoubtedly placed 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); Id. at 325 (Wachtler, J., concurring) (stating view that prosecution inquiry on defense witness's failure to volunteer exculpatory information "poses a risk to the defendant's right to a fair trial," unless restrictions set forth in majority opinion "are carefully observed in future cases"). Furthermore, in summation, ADA Stepner highlighted Black's failure to volunteer the exculpatory information to ADA Reeves, implying that Black's testimony regarding Mr. Jordan's whereabouts was fabricated on the eve of trial. 43 (Tr. 277:4-278:24) (underscoring ADA Reeves' testimony and urging the jury to "disregard" all of Black's testimony in light of his purported omission). ADA Stepner 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." (Tr. 277:4-278:24); See People v. McKutchen, 76 A.D.2d 934, 934 (2d Dep't 1980) (reversing conviction where ADA "improperly sought to bolster the credibility of this all-important witness" by stressing in summation that witness was an accomplished police officer). Had the trial court properly thwarted ADA Stepner's foundationless impeachment attempts, 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 Mr. Jordan's participation in the shooting. Because the trial court wrongly allowed the People to impeach Black with his prior omission without ever laying a proper foundation, this Court should reverse Mr. Jordan's conviction and order a new trial. 44 POINT IT Appellant was Deprived of His Due-Process Right to a Fair Trial When the Trial Court Allowed the People to Present Highly Prejudicial Extrinsic Evidence Regarding the Sole Defense Witness's Alleged Attempt to Bribe the Victim Not to Testify The trial court denied Mr. Jordan 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 not to testify at trial. Mr. Austin did not bring these allegations to the attention of ADA Stepner 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. Nevertheless, the trial court allowed the People to call Mr. Austin back to the stand in an attempt to expose Black's bias by means of these unsubstantiated and speculative accusations. Also, by this point in the trial, the People had already made numerous attempts to expose Black's alleged bias. Any probative value of stockpiling additional bias evidence was substantially outweighed by the risk of unfair prejudice to Mr. Jordan, whom the jury would likely believe was the source of the alleged bribe. A. The Victim's Bribery Accusation was Unsubstantiated and Entirely Speculative Even when proffered extrinsic evidence is probative of bias, a trial court should limit 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 45 excluded line of questioning was purely speculative). In Barney, this Court explained that "a court may, in the exercise of its discretion, properly exclude [extrinsic proof tending to establish a reason to fabricate] when it is too remote or speculative." Id.; People v. Ocampo, 28 A.D.3d 684, 685 (2d Dep't 2006) ("examination of a witness to establish [a motive to fabricate] must proceed upon some good-faith basis"); People v. Rodriguez, 191 A.D.2d 723, 723 (2d Dept. 1993). Here, Mr. Austin waited until after he had left the stand to claim that Black had, months earlier, allegedly offered him $10,000 not to testify. (Tr. 239:12- 240:22). When defense counsel objected to the People calling the 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. 207:11-12). 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." (208:10-14). Indeed, on cross-examination, Black had expressly denied ever having tried to persuade Mr. Austin not to testify, let alone offer him $10,000. (Tr. 185:23-186:1). Prior to trial, Mr. Austin never brought this information to the attention of ADA Stepner or law enforcement. Instead, he came forward only after Black testified at 46 trial. Without anyone else to corroborate his "bizarre" allegations, and given that Mr. Austin waited until the close of trial to volunteer this information, the trial court should have prohibited the People from offering such highly prejudicial and . speculative impeachment evidence. People v. Taylor, 40 A.D.3d 782, 784 (2d Dep't 2007) ("However, the court, in its discretion, may properly exclude such evidence when it lacks a good faith basis ... or is too remote or speculative."). B. The Victim's Rebuttal Testimony Offered Scant Probative Value The trial court erred when it allowed Mr. Austin to testify regarding Black's alleged bribery attempt because the scant probative value of further exposing Black's supposed bias was substantially outweighed by the risk that the jury would unfairly attribute the bribe to Mr. Jordan. "Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury." People v. Scarola, 71 N.Y.2d 769, 777 (1988); see also People v Primo, 96 N.Y.2d 351, 355 (2001); People v. Rosado, 273 A.D.2d 325, 325 (2d Dep't 2000). More specifically, a trial court should exclude evidence that is "too slight, remote or conjectural to have any legitimate influence in determining the fact in issue." People v. Martinez, 177 A.D.2d 600, 601 (2d Dep't 1991); see also People v. Cook, 42 N.Y.2d 204, 208 47 (1977) ("A defendant is entitled to have the jury determine his guilt or innocence solely upon evidence tending to prove the crime charged and uninfluenced by irrelevant and prejudicial facts and circumstances"). Here, the probative value of Mr. Austin's bribery allegation was minimal, while the risk of unfair prejudice to Mr. Jordan was great. Throughout trial, the People repeatedly focused on Black's relationship with Mr. Jordan, in an attempt to convey to the jury that Black was biased in favor of Mr. Jordan and thus testifying untruthfully. The People pointed out that Black was reluctant to cooperate with authorities on the night of the shooting (Tr. 58:24-60:1) and again when the detective contacted him on the phone (Tr. 144:3-12), that he repeatedly stated that he would not testify at trial (e.g., Tr. 144:3-12, 188:2-13, 227:10-13), that he was good friends with the Mr. Jordan and his brothers (Tr. 171:5-10), that he spoke with Mr. Jordan on the phone while Mr. Jordan was incarcerated (Tr. 172:13-173:14), that he visited Mr. Jordan in jail (Tr. 173:15-174:3), and that he attended court appearances and spoke with Mr. Jordan's family regarding the case (Tr. 174:22-77:2). Moreover, the People also had the opportunity to expose Black's alleged bias when they were improperly allowed to impeach Black for failing to volunteer that Mr. Jordan was not in the apartment at the time Mr. Austin was shot, both on cross-examination and again through the rebuttal testimony of 48 ADA Reeves. (Tr. 182:16-185:12, 227:8-16). By the end of trial, there was minimal probative value in driving home the bias point with additional extrinsic evidence. See People v. Diaz, 97 A.D.2d 704, 705 (2d Dep't 1983) ("in this state the evidentiary rules bar the introduction of highly prejudicial evidence when its probative value is so scant"). In contrast, by allowing evidence of the alleged bribe to be placed before the jury, the trial court unfairly ran the risk that that the jury would attribute that bribe to Mr. Jordan. (Tr. 207:8-208:20). Defense counsel objected vehemently regarding the speculative nature of the allegations and the potential risk of unfair prejudice to Mr. Jordan, but Justice Goldberg overruled his objections, concluding that the admissibility of Mr. Austin's rebuttal testimony was "[f]or appellate review." (208:10-20). The trial court's decision to admit "highly prejudicial [evidence] at a trial in which the evidence of defendant's guilt was not overwhelming" was detrimental to Mr. Jordan's defense because it both undermined the credibility of his only defense witness and opened the jury's eyes to the possibility that Mr. Jordan attempted to bribe the witness. People v. Harper, 220 A.D.2d 450, 450 (1995). The trial court's limiting instruction could not correct this error. People v. Calabria, 94 N.Y.2d 519, 523 (2000) ("A court's instructions to a jury to disregard matters improperly brought to their attention 49 cannot 'always assure elimination of the harm already occasioned."') (quoting People v. Carborano, 301 N.Y. 39, 42-43 (1950)); People v. Stanard, 32 N.Y.2d 143, 148 (1973) ("Truly prejudicial evidence cannot be erased from a juror's mind by the court's instructions"). And the trial court's error was not harmless. Crimmins, 36 N.Y.2d at 237. Despite Justice Goldberg's instruction, the jury was well aware that Black and Mr. Jordan were supposedly friends and thus the jury could presumably conclude that the attempted bribe originated with Mr. Jordan. Indeed, in summation ADA Stepner made that connection, highlighting the bribery allegations while at the same time arguing that Black was in fact Mr. Jordan's close friend. (Tr. 278:25- 280:25). No jury instruction could eliminate the risk that the jury would connect the dots, especially when ADA Stepner was making that very connection in his summation. Calabria, 94 N.Y.2d at 523 (noting matters improperly before the jury cannot be cured simply with an instruction). Because the trial court wrongly admitted Mr. Austin's testimony regarding Black's alleged bribery attempt, and that testimony unfairly prejudiced Mr. Jordan, this Court should reverse Mr. Jordan's convictions and order a new trial. 50 POINT III The Court Improperly Abdicated its Judicial Function When it Permitted the Court's Clerk to Dismiss Prospective Jurors, Based on the Jurors' Own Subjective and Unquestioned Belief of a Hardship The trial court erred in allowing prospective jurors to opt out of jury service based on their own subjective belief that they would suffer a "hardship" if selected. (Jury Selection 11:19-13:6, 12:23-24). Instead of evaluating each juror's alleged hardship himself, Justice Goldberg asked the jurors to step outside the courtroom and delegated the hardship-evaluation process to his clerk. (Jury Selection at 12: 1- 24). None of these "opt out" jurors were questioned by Judge Goldberg, let alone in the presence of Mr. Jordan, and the ultimate decision regarding each juror's supposed hardship was confirmed by the trial court's clerk. The result of this error was an all-volunteer jury made up only of those potential jurors who did not, themselves, decide to opt out of serving. A criminal defendant has the right to have a judge preside over his empanelment process. In People v. Toliver, the Court of Appeals made clear that an integral component of a defendant's right to a jury trial is the presence and supervision of a judge during the voir dire proceedings. 89 N.Y.2d 843, 844 (1996) ("fundamental right to have a [j]udge preside over and supervise the voir dire proceedings while prospective jurors are being questioned regarding their qualifications"). Similarly, in People v. Thorpe, this Court held that the trial court 51 violated "defendant's right to a jury selected in accordance with the law" when it summarily dismissed two potential jurors, "without any inquiry by the court." 223 A.D.2d 739, 740-41 (2d Dep't 1996). Mr. Jordan was denied his right to have a judge oversee the empanelment process. Toliver, 89 N.Y.2d at 844. Here, no conference was held regarding the availability of potential jurors. Instead, jurors simply raised their hands if they believed they had a personal hardship-those who raised their hands were permitted out walk out of the courtroom to meet with the clerk. (Jury Selection Tr. 12:23-24). By allowing a court clerk to evaluate the supposed hardships of potential jurors, Justice Goldberg improperly delegated his judicial duty. A judge may not delegate to a nonjudicial staff member his or her authority to carry out substantive tasks. See, e.g., People v. Bonaparte, 78 N.Y.2d 26, 30 (1991); People v. Galdamez, 234 A.D.2d 608, 608 (2nd Dept. 1996) (improper delegation to direct court clerk to clarify legal principle for jury); People v. Tucker, 182 A.D.2d 654, 654 (2nd Dept. 1992) (improper delegation to direct court officer to tell jury to continue their deliberations). A judge may, however, in narrow circumstances, delegate to staff members those duties that are truly ministerial in nature. See People v. Rodriguez, 256 A.D.2d 478, 478 (2nd Dept. 1998). 52 Far from a ministerial task is the decision to exclude otherwise-competent jurors from an attempted-murder jury trial. In fact, the review of potential jurors in this case is much closer to the judicial responsibilities that were improperly delegated in Bonaparte, Galdamez, and Tucker than it is a ministerial endeavor. In Toliver, the Court of Appeals made clear that Mr. Jordan, as any defendant, had a "fundamental right to have a [j]udge preside over and supervise the voir dire proceedings while prospective jurors [were] being questioned regarding their qualifications." 89 N.Y.2d 843, 844 (1996) (emphasis added). By placing the exclusion of potential jurors in the hands of a law clerk, the trial court abdicated its judicial function by improperly delegating a nonministerial, judicial task to a court staff member. Because it is also apparent that defense counsel did not participate in the clerk's conferences with the prospective jurors, Mr. Jordan was also deprived his right to counsel by the trial court's delegation procedure. See People v. Velasco, 77 N.Y.2d 469,471-73 (1991) (requiring presence of counsel during conversations between court and jurors claiming disqualifications, such as physical impairments and scheduling conflicts). This case is distinguishable from cases such as People v. King, 110 A.D.3d 1005, 1006 (2d Dep't 2013) and People v. Toussaint, 40 A.D.3d 1017, 1017 (2d Dep't 2007), because in those cases the issue on appeal 53 was whether the trial court made a "sufficient inquiry" before discharging jurors, not whether the court completely abdicated its judicial power by delegating that function to a clerk, as the Judge Goldberg did here. Although defense counsel did not protest the trial court's grant of hardship excusals, his failure to do so does not bar Mr. Jordan's entitlement to relief because the trial court's decision to allow jurors to opt out of serving on the jury, subject only to the review of the court's clerk, constituted a mode-of-proceedings error. See People v. Ahmed, 66 N.Y.2d 307, 310-12 (1985) Gudge's delegation of his duties to a law secretary during jury deliberation violated defendant's right to jury trial and constituted a mode-of-proceedings error). And, because improper delegation of judicial authority constitutes a "substantial departure from a statutory provision that affects the organization of the court or the mode of proceedings prescribed by law," the error cannot be considered harmless and cannot be waived or consented to by the defendant. People v. Coons, 75 N.Y.2d 796, 797 (1990). Accordingly, this Court should order a new trial as a matter of law or, in the alternative, in the interest of justice. 54 POINT IV Appellant's Sentence of Fourteen Years Imprisonment is Excessive for a First-Time Offender Mr. Jordan, a first-time-felony offender, was ultimately found not guilty of attempted murder but guilty of attempted assault in the first degree. It is indisputable that Mr. Austin was seriously wounded. But at the sentencing hearing, the trial court gave little weight to Mr. Jordan's first-time-offender status, or the fact that the jury found Mr. Jordan not guilty of attempted murder. The trial court sentenced Mr. Jordan to fourteen years in prison with five years of post- release supervision. (Sentencing Tr. 9:20-1 0:5). In setting a sentence, a trial court should be guided by "the criterion that a minimum amount of confmement should be imposed consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant." People v. Notey, 72 A.D. 2d 279, 282-83 (2d Dept. 1980) (internal quotations omitted). Here, although the crime was violent in nature, a sentence of fourteen years is unduly harsh for a first-time- felony offender. Cf. People v. Stinson, 272 A.D.2d 483, 483 (2d Dep't 2000) (affirming three and one half to seven years of imprisonment for first-degree attempted assault); People v. Koslow, 160 A.D.2d 954, 955 (2d Dept' 1990) (affirming sentences of two to four years and three to seven years in prison for first-degree attempted assault); People v. Scully, 50 A.D.2d 824, 824 (1975) 55 (releasing defendant for time served after one-year sentence for first-degree attempted assault). In light of the questionable nature of the evidence against Mr. Jordan- specifically, Mr Austin's identification of Mr. Jordan as the shooter-the jury's reluctance to convict Mr. Jordan of attempted murder, and the fact that this was Mr. Jordan's first felony charge, this Court can and should take a "second look" at Mr. Jordan's sentence, consistent with its appellate authority to "reach extraordinary situations" as to sentencing "in light of the societal aims which such sanctions should achieve." Suitte, 90 A.D.2d at 85-86 ("[S]ince the Legislature has empowered us to modify sentences as a matter of discretion in the interest of justice ... , we can substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence" (internal quotation marks and citations omitted)); see also People v. Delgado, 80 N.Y.2d 780, 783 (1992). CONCLUSION For the above-stated reasons, this Court should reverse Mr. Jordan's and order a new trial. Alternatively, this Court should reduce his sentence in the interest of justice. Respectfully Submitted, 56 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR § 670.10.3(1) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line-spacing: Double The total number of words in the brief, including point headings and footnotes and excluding the cover page and pages containing the Table of Contents, Table of Authorities, Certificate of Compliance, and Statement Pursuant to C.P.L.R. § 5531 is 11,513. 58 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT ----------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, AD2 No. 2012-10762 Respondent, -against- AFFIDAVIT OF SERVICE RONELL JORDAN, Defendant-Appellant. ---------------------------------------------------------------X STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK) CARROL MARSHALL, being duly sworn, deposes and says: that she resides at Elmsford, New York; that she is over the age of twenty-one years and that she is not a party to this proceeding. That on the 30th day of June, 2014, deponent caused to be served by hand the two copies of the annexed: BRIEF FOR DEFENDANT-APPELLANT, upon the following party: Hon. Kenneth P. Thompson Kings County District Attorney 350 Jay Street Brooklyn, NY 11201 an address designated by said attorney for that p~ /J1 ;' , ;;'l!tt?/IY~ Carrol Marshall S~m to before me this 3/)f ~ay of June, 2014 I?Jviw._A.~ NotarY Public .. . "'ATIIfCIA A. AIHMAN Notary Pubflc, ._ 01 Ntw Vort No. 01Aaetll444 Ouallfled In Bronx Co =led In New vor':':rounty ex,m.. Dec. 11, 2014 L. c:: :z -··· :;e: c; 0 ·-I ii 0