The People, Appellant,v.Kharye Jarvis, Respondent.

Brief

N.Y.February 19, 2015

Reply Brief Completed: August 14, 2014 To Be Argued By: Geoffrey Kaeuper Time Requested: 10 Minutes STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- KHARYE JARVIS, Appellant, Defendant -Respondent. REPLY BRIEF FOR APPELLANT APL 2014-00067 SANDRA DOORLEY District Attorney of Monroe County Attorney for Appellant By: Geoffrey Kaeuper Senior Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-4674 Fax: (585) 753-4576 TABLE OF CONTENTS TABLE OF AUTHORITIES POINT I CONCLUSION Defendant was not deprived of effective assistance of counsel. -i- .. 1l 1 5 TABLE OF AUTHORITIES STATE CASES People v McLean, 15 NY3d 117 (20 1 0) ......................... .. ...... 3 -n- POINT I Defendant was not deprived of effective assistance of counsel. Contrary to defendant's contention, defense counsel had legitimate strategic reasons for his handling of Barnwell's testimony about defendant's threat to her. Even if counsel had immediately objected to the prosecutor's first question about the threat, the jury might well have heard Barnwell's first answer: "He said if we told, he would shoot us" (A 208). Having the jury instructed to disregard that answer might well strike defense counsel as a hollow victory. And the testimony that further questioning and cross-examination ultimately produced was far more susceptible to defendant's argument in summation that Barnwell fabricated her claims because of bias (see A 421-422, 433). Moreover, even if it had been possible to object in time to prevent the answer, defense counsel might well fear that the question itself would influence the jury, as the prosecutor noted that "defendant made a statement to [Barnwell] about if you knew what had happened" (A 208). Defense counsel could reasonably prefer not to leave that pregnant question unanswered but to allow Barnwell to undercut her own credibility through her continued reluctant and evasive answers. 1 That is particularly so given the context in which the question was asked. Barnwell had just testified -though with considerable difficulty- to hearing defendant on the day before the murder say, in reference to one of the murder victims, that defendant "was going to shoot that fucking nigger" (A 208). That statement was as much or more damning than defendant's threat also to shoot Barnwell. A reasonable attorney could conclude that undermining Barnwell's credibility was more important than objecting to testimony that was functionally redundant. Thus, in summation, counsel was able to suggest that Barnwell was lying about the threat because she needed to read her prior statement in order to remember it (A 421 ). Accordingly, defense counsel pursued a legitimate strategy even if it was ultimately unsuccessful. And it appears that the strategy did help defendant's case. After a readback of Barnwell's testimony, the jury asked to see her earlier statement (which was not in evidence) (Supplemental Appendix at 5). Thus, her testimony, even after it was reread, was evidently not sufficiently convincing and some jurors harbored doubts about her credibility. As to the alibi testimony from Carolyn and W G defendant argues that the problem was not that the G s keyed the alibi to the wrong day of the week but that they keyed it to a birthday party (Resp Br, 26). But that 2 • distinction changes nothing. The testimony about the birthday party was elicited on cross-examination (A 357, 371). Defense counsel cannot be held responsible for all of the witnesses's answers during cross-examination. Counsel directed the witnesses's attention to the correct day, but on cross-examination they added details that showed them to be inaccurate. To the extent defendant now claims that defense counsel must have insufficiently investigated the alibi or insufficiently prepared the witnesses, that claim is not supported by the record. The record tells us nothing about what questions defense counsel asked of the witnesses, what answers they gave him, how they told him they could pinpoint the day in question, or what events their memories were keyed to. The record, therefore, is inadequate for defendant's claim. ''[T]he lack of an adequate record bars review on direct appeal not only where vital evidence is plainly absent ... but wherever the record falls short of establishing conclusively the merit of the defendant's claim" (People v McLean, 15 NY3d 117 [2010]). Here, the record cannot establish conclusively (or otherwise) that defense counsel did anything wrong in investigating or preparing the alibi witnesses. Furthermore, the flaw in the G 's testimony did not conclusively disprove the alibi. The jurors could certainly believe that the G s were 3 mistaken about why they remembered the day- or even that the G s were inventing a reason - without disbelieving the rest of their testimony. Even though the G s keyed the alibi to the wrong day, their testimony harmonized with that ofMelissa Jarvis. It was quite reasonable to believe they were all testifying about the same day, despite the discrepancies. And Melissa Jarvis, like Gary Turnipseed, recalled the correct date because it was "social security day" (A 80-81, 382). Thus, although the G s were wrong about how they identified the specific day, that was far from dispositive as to the alibi. As to prejudice, defendant contends that it is probable that the threat to Barnwell and/or the flaw in the testimony of the alibi witnesses "tipped the balance" in a close case (Resp Br, 34 ). But the reverse is true. The case became close because Barnwell's entire testimony was called into question and because the alibi testimony was not conclusively discredited. If Barnwell was highly credible, the jury would have found it much easier to convict based upon her testimony that defendant stated his intention to murder Prather. Likewise, if the alibi had "put an exclamation mark on the prosecutor's case," the jury would not have remained deadlocked for as long as they did. Even if different strategies might with hindsight appear preferable, therefore, defendant was not deprived of effective assistance of counsel. 4 CONCLUSION The order of the Appellate Division should be reversed, and the judgment of conviction should be reinstated. Dated: August 14, 2014 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney - 5 STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- KHARYE JARVIS, Defendant-Respondent. PDF CERTIFICATION I, GEOFFREY KAEUPER, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: August 14, 2014 STATEOFNEWYORK COURTOF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- KHARYE JARVIS, Defendant-Respondent. STATE OF NEW YORK) COUNTY OF MONROE) SS: I CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL I CYNTIDA A. BELLUCCO, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 14TH day of August, 2014, deponent served three (3) copies of Reply Brief for Appellant upon William G. Pixley, Esq., attorney for Defendant- Respondent in this action at 32 New London Road, Pittsford, New York 14534, by depositing true copies of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. ~;~ c~A:A. BELLUCCO Notary Mlic; St~te 01 New Vork OualiiJed In Monroe County M Conumsston Expires September 30, 20 J:J