The People, Respondent,v.Edwin Mendez, Appellant.BriefN.Y.October 15, 2015DISTRICT ATTORNEY COUNTY OF NEW YORK ONE HOGAN PLACE New York, N. Y. 10013 (212) 335-9000 CYRUS R. VANCE, JR. DISTRICT ATTORNEY March 30, 2015 Honorable Jonathan Lippman Chief Judge of the State of New York New York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Attention: Honorable Andrew W. Klein, Clerk of the Court Re: People v. Edwin Mendez N.Y. Co. Indictment No. 351/11, Rule 500.11 submission, APL-2014-00320 Dear Judge Lippman: By permission of the Honorable Robert S. Smith of the Appellate Division, First Department, defendant Edwin Mendez appeals from an April 10, 2014, order of the Appellate Division, First Department, which affirmed a January 10, 2012, judgment of the Supreme Court, New York County (Edwin McLaughlin, J.). By that judgment, defendant was convicted, after a jury trial, of Assault in the Second Degree (Penal Law § 120.05[2]). Defendant was sentenced, as a second violent felony offender, to a determinate prison term of seven years, to be followed by five years of post-release supervision. Defendant is currently incarcerated pursuant to that judgment. By this Court’s order, dated January 23, 2015, this appeal has been calendared for summary review treatment pursuant to Section 500.11 of the Court’s Rules of Practice. The People submit this letter in response to appellant’s letter dated February 13, 2015. On January 23, 2011, Jason Justiniano and his siblings, Edwin Justiniano, Jennifer Justiniano, and Stephanie Nazario, left Escuelita’s nightclub on 39th Street D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 2 March 30, 2015 and Eighth Avenue in Manhattan. On the same block as Escuelita’s, defendant was standing on the sidewalk with his friend Anthony Adomis. As Jennifer and Nazario walked past defendant and Adomis, defendant said to them, “I would love to have a hotel room so I could take you to my room and bust a nut in your face.” Jason heard the lewd proposition to his sisters and got into an argument with defendant. Jason and Edwin had a brief physical altercation with defendant and Adomis, after which defendant and Adomis left the scene. Several minutes later, defendant returned to Jason and Edwin, screaming, “Come here. It’s not over yet.” Using a metal meat tenderizer that he had snatched from a food cart vendor’s work station, defendant initially struck Edwin on his neck. Defendant then bashed Jason on the side of his head with the weapon. Jason fell to the ground and immediately lost consciousness. Defendant discarded the meat tenderizer in a garbage bin and fled. He was arrested a short time later down the block from where he had assaulted Jason and Edwin. An Escuelita’s employee found the meat tenderizer in the garbage bin and turned it over to the police. Jason was unresponsive and bleeding from his head, mouth and nose when he was taken by ambulance to the hospital. He sustained a significant skull fracture and swelling to his brain as a result of the head trauma he received from being smashed on the head with the meat tenderizer. In addition, three staples were needed to close a laceration on Jason’s head. By New York County Indictment Number 4457/2010, filed on September 15, 2010, a grand jury charged defendant with Assault in the First Degree (Penal Law § 120.10[1]) and Assault in the Second Degree (Penal Law § 120.05[2]), for his assaults against Jason Justiniano and Edwin Justiniano, respectively. On December 7, 2011, defendant’s trial commenced before the Honorable Edwin J. McLaughlin and a jury. On December 19, 2011, the jury convicted defendant of the lesser-included charge of second-degree assault (Penal Law § 120.05[2]) for his attack on Jason Justiniano, and acquitted him of first-degree assault and the lesser-included charge of attempted first- degree assault. Defendant was also acquitted of second-degree assault of Edwin Justiniano. In a motion, dated January 6, 2012, defendant moved pursuant to CPL 330.30(1) to set aside the verdict on the ground, inter alia, that the trial court had erroneously precluded defendant from introducing evidence of the Justinianos’ prior violent acts. On January 10, 2012, the court denied defendant’s motion and sentenced defendant as noted above. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 3 March 30, 2015 Defendant appealed his conviction, arguing that the trial court improperly handled three jury notes and erroneously excluded evidence of prior violent acts of the Justiniano siblings. On April 10, 2014, the Appellate Division affirmed defendant’s conviction. The Appellate Division concluded that, “[a]lthough the record is silent regarding the court’s responses to three jury notes requesting materials not in evidence, reversal is not required. None of these notes were substantive inquiries that required compliance with the procedures mandated by CPL 310.30.” People v. Mendez, 116 A.D.3d 513 (1st Dept. 2014). The court reasoned that the three notes “only necessitated the ministerial actions of informing the jury that none of the items they requested were in evidence.” Id. With respect to defendant’s claim that the trial court erroneously excluded evidence regarding Jason, Edwin, and Jennifer Justiniano’s prior violent acts, the Appellate Division concluded that “the court’s limitations on such evidence were reasonable exercises of discretion.” Id. The Appellate Division opined that, given defendant’s particular justification defense, “the prior violent acts had very little probative value.” Id. In addition, the Appellate Division found that defendant “did not preserve his claims that certain prior acts of prosecution witnesses were admissible to impeach their credibility, or that any of the court’s evidentiary rulings impaired his constitutional right to present a defense.” Id. at 514. In any event, the Appellate Division held that even if any of the trial court’s evidentiary restrictions “could be viewed as erroneous,” it found them to be “harmless.” Id. On appeal before this Court, defendant claims that the trial court’s failure to respond on the record to the three jury notes requesting items not in evidence requires a reversal of his conviction. In addition, defendant claims that the trial court improperly precluded evidence regarding the prior violent acts committed by the Justiniano siblings. EVIDENCE AT TRIAL The People’s Case On January 22, 2011, JASON JUSTINIANO, who was 26 years old and lived in New Jersey, traveled into the Bronx with his siblings, EDWIN JUSTINIANO, JENNIFER JUSTINIANO and STEPHANIE NAZARIO (Jason Justiniano: 102, 104; Nazario: 205, 209).1 The four siblings planned to stop at Edwin’s Bronx 1 A complete summary of the evidence at trial is set forth in the People’s Appellate Division brief. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 4 March 30, 2015 apartment before heading into Manhattan for a night out at Escuelita’s nightclub, located at 39th Street and Eighth Avenue (Jason Justiniano: 102, 104; Nazario: 205, 208, 209; Jennifer Justiniano: 386; Edwin Justiniano: 451). Escuelita’s was an “alternative life style” nightclub, where JOEL ROYSTER was the head of security (Royster: 290-291, 320). Edwin and Jennifer were “known in the club” since they went there often; Jason had been to Escuelita’s on four previous occasions (Jason Justiniano: 162, 176; Nazario: 248; Edwin Justiniano: 488).2 When the siblings arrived at Edwin’s apartment between 10:15 and 11:30 p.m., Edwin, Jason, and Jennifer had shots of Hennessey and shared a marijuana cigar; Stephanie did not have alcohol or marijuana since she did not drink or smoke (Jason Justiniano: 105-106, 156; Nazario: 209-211, 246; Jennifer Justiniano: 387; Edwin Justiniano: 452, 490). Before midnight, the four siblings left Edwin’s apartment and drove into Manhattan (Jason Justiniano: 107; Nazario: 211; Jennifer Justiniano: 388; Edwin Justiniano: 452). On the way to the club, Edwin and Jason each had an ecstasy pill and Jennifer had half an ecstasy pill (Jason Justiniano: 107, 156; Nazario: 247; Jennifer Justiniano: 388; Edwin Justiniano: 453, 490-491). While at Escuelita’s, Jason had two beers and two cups of cranberry juice mixed with vodka (Jason Justiniano: 108, 111; Nazario: 213, 248), Edwin had three or four beers (Edwin Justiniano: 451), and Jennifer did not drink (Jennifer Justiniano: 389). The siblings did not have any altercations with any patrons at the club (Jason Justiniano: 112; Nazario: 213, 216). At about 4:30 or 5:00 a.m., the four siblings left Escuelita’s and walked to a White Castle restaurant located at 37th Street and Eighth Avenue (Jason Justiniano: 111-112, 123, 157, 173, 175, 179; Nazario: 213-216, 249-250; Jennifer Justiniano: 391; Edwin Justiniano: 454-455, 496). Jason and Edwin were walking next to each other a few feet in front of their sisters (Jason Justiniano: 114, 158; Stephanie Nazario: 216; Jennifer Justiniano: 391; Edwin Justiniano: 455). The siblings passed defendant and another man, who were standing on the sidewalk (Jason Justiniano: 114, 123, 157-158; 2 Jennifer had been involved in “fights” in Escuelita’s (Jason Justiniano: 164; Jennifer Justiniano: 413). Jennifer testified that one fight occurred when a group of guys approached her to dance. After she told them that she was “gay” and would not want to “bump and grind on a guy,” one of the men grabbed her and placed her against a wall. Jason saw what had happened and “the fight started” (Jennifer Justiniano: 414). Jason testified that Jennifer “wasn’t really fighting,” but rather, he “was doing the fighting for her” (Jason Justiniano: 165). As a result of that altercation, Jason had to seek medical attention (Jason Justiniano: 197). When Jennifer told defendant’s attorney before the trial that she “liked to fight,” she meant that if a fight “comes to [her],” she “will defend [her]self” (Jennifer Justiniano: 432). None of the Justiniano siblings had ever been banned from Escuelita’s for fighting (Jason Justiniano: 173; Jennifer Justiniano: 414). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 5 March 30, 2015 Nazario: 217-218, 243, 251; Jennifer Justiniano: 418; Edwin Justiniano: 455, 458, 497). Jennifer had seen defendant bartending in the past at Escuelita’s, although she had never “interact[ed]” with him (Jennifer: 415). Earlier that evening and on other occasions, Edwin had seen defendant in the club owner’s office (Edwin Justiniano: 456, 489, 506). Defendant said to Nazario and Jennifer, “I would love to have a hotel room so I could take you to my room and bust a nut in your face” (Jason Justiniano: 114, 125, 159; Stephanie Nazario: 217, 251; Jennifer Justiniano: 392, 420; Edwin Justiniano: 455). Nazario, who had never seen the two men before, laughed at the remark and continued walking with her sister (Nazario: 219). When Jason heard defendant’s comment, he approached defendant, whom he had never seen before, and asked him why he made that remark to his sisters (Jason Justiniano: 115, 119, 160; Nazario: 220; Edwin Justiniano: 456). Jason and defendant had a loud verbal argument (Jason Justiniano: 116, 160; Nazario: 220-221; Jennifer Justiniano: 392) and engaged in a “push-push-arguing-kind-of-thing” (Nazario: 222). Nazario and Jennifer attempted to pull Jason away from defendant and his friend (Jason Justiniano: 116, 118-119, 121, 161, 189; Nazario: 221-222, 253; Jennifer Justiniano: 393). At that point, defendant punched Jason on the left side of his face, and Jason, in turn, punched defendant (Jason Justiniano: 116, 118-119, 121, 161, 189; Nazario: 221-222, 253; Jennifer Justiniano: 392-394, 421; Edwin Justiniano: 456, 500).3 After defendant’s friend also punched Jason in the face, Edwin grabbed defendant’s friend and began fighting with him (Jason Justiniano: 119, 121, 162, 182; Nazario: 223, 254; Jennifer Justiniano: 392-395, 421; Edwin Justiniano: 457-458). Nazario and Jennifer tried to separate their brothers from defendant and his companion (Nazario: 224; Jennifer Justiniano: 393-395), but the four men continued fighting. The altercation moved from the sidewalk into the street near the southwest corner of 39th Street and Eighth Avenue, across from a J.P. Morgan Chase Bank. In the street, Jason pushed defendant to the ground. When defendant got back on his feet, he and his friend fled toward the Chase Bank (Jason Justiniano: 122, 125, 162, 163, 179-180, 184, 395; Nazario: 224-226, 254-255; Jennifer Justiniano: 395-396; Edwin Justiniano: 458). The fight lasted about ten to 15 minutes (Jason Justiniano: 121, 125; Nazario: 223).4 3 Nazario recalled that defendant struck Jason on the right side of his neck (Nazario: 222), and Jennifer testified that defendant’s friend threw the first punch (Jennifer Justiniano: 395, 420). 4 While trying to break up the fight, Jennifer was struck in the face by either defendant or his friend, which resulted in her receiving a black eye (Jennifer Justiniano: 394, 407). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 6 March 30, 2015 Meanwhile, MAGED KHALIL had his food vending cart set up in front of the Chase Bank when he saw a “fight” outside Escuelita’s between two groups (Khalil: 372, 381-382). One of the participants in that fight came running to Khalil’s food cart, grabbed his “hammer” with “spiky prongs coming out” that he used to “beat the chicken” and ran off with it (Khalil: 372-374, 379-381, 384-385). After the fight, the four siblings continued on their way to White Castle (Jason Justiniano: 128, 188; Nazario: 227, 258). As they were walking, “several minutes” after defendant had left them, they heard somebody yell, “[W]atch it” (Jason Justiniano: 129, 134, 185; Nazario: 257-258; Edwin Justiniano: 504). Defendant was quickly walking toward the four siblings and screaming, “Come here. It’s not over yet” (Nazario: 228, 244, 259; Jennifer Justiniano: 435; Edwin Justinianio: 460). Edwin saw that defendant was “coming at a fast pace” near the crosswalk at 39th Street and Eighth Avenue with “something” in his hand (Edwin Justiniano: 461, 504-505, 523). When Edwin tried to intercept defendant in the middle of the crosswalk, defendant struck him in the neck with a “metal meat tenderizer” that had “pointy little things on it.” Edwin fell to the ground, but was able to immediately return to his feet (Nazario: 230, 232-234, 260-261-262; Edwin Justiniano: 461-463, 504, 508, 510). Defendant continued to run toward Jason (Nazario: 230), seconds after he clobbered Edwin (Edwin Justiniano: 469). As defendant was charging after Jason, the meat tenderizer was in his right hand, elevated in the air about “chest high” (Jason Justiniano: 129-131, 186, 199, 201- 202; Jennifer Justiniano: 397, 423-425). When defendant reached Jason at the crosswalk at 39th Street and Eighth Avenue, he swung his fist at Jason, but missed (Nazario: 232, 235-236, 261-262; Jennifer Justiniano: 397, 423-425, 436; Edwin Justiniano: 462). Jason placed his hands up to protect himself and moved his sisters out of the way (Jason Justiniano: 130-131, 186-188, 190, 198, 202; Nazario: 232, 263- 264; Jennifer Justiniano: 397-398, 435; Edwin Justiniano: 510). Defendant then struck Jason on the left side of his head, above his ear, with the metal meat tenderizer. Jason fell to the ground on the right side of his head and appeared to be “dead” (Jason Justiniano: 130-132, 153; Nazario: 232-234, 235, 240; Jennifer Justiniano: 397-399, 435-436; Edwin Justiniano: 463, 510). As Jason lay unconscious in the street (Jason Justiniano: 132, 153, Nazario: 234-235; Jennifer Justiniano: 399; Edwin Justiniano: D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 7 March 30, 2015 463, 510), defendant fled toward the Chase Bank (Nazario: 234; Edwin Justiniano; 510). 5 At the time of the assault, RAYMOND LORENZO, the DJ at Club Escuelita, had finished working his shift and was about to enter his car, which was parked at 39th Street and Eighth Avenue, when he noticed two men “arguing” (Lorenzo: 559- 564). Lorenzo then observed one of the men take a “meat pounder or hammer” and, with a “full swing,” use it to strike the other man with “a lot of force.” The victim fell, face down, onto the ground (Lorenzo: 563-566, 572). Lorenzo did not see anyone else near the two men at the time of the assault, and the man who was whacked with the meat pounder did not have a weapon in his hand (Lorenzo: 571, 574). As the man with the meat pounder ran away, Lorenzo yelled to one of the bouncers at Escuelita’s to stop him (Lorenzo: 573). Lorenzo went over to the victim, who was unconscious (Lorenzo: 564, 572, 574-575). Believing that the victim was dead, Lorenzo called 911 (Lorenzo: 564, 568; People’s Exhibit 40 [911 call]). Meanwhile, Joel Royster was in front of Escuelita’s on 39th Street when he saw defendant with “something in his hand” which he used to strike Jason on the head (Royster: 298-300, 326). Royster then saw Jason drop to the ground (Royster: 300). At the “moment” defendant swung the object at Jason, nobody was “attacking” defendant and there was only one other person in the area, about an “arm and a half” away from Jason (Royster: 301-302). Khalil, who was still by his food cart, saw the man who took his meat tenderizer run over to another man and hit him with it (Khalid: 375). Jason was bleeding from his head and mouth and did not respond when Nazario attempted to speak with him (Nazario: 235). Meanwhile, Jennifer and Edwin chased after defendant (Jennifer Justiniano: 403; Edwin Justiniano: 464-465, 510). When they caught up to defendant in front of the Chase Bank, he still had the meat 5 Jason smoked marijuana daily and had last smoked the substance that evening at about 2:30 a.m.; it did not impair his ability to perceive the events of that evening (Jason Justiniano: 141). An ecstasy pill makes Jason feel mellow and only affects him for a “couple of hours”; he was not feeling the effects of the pill that he had ingested earlier in the evening at the time of the incident with defendant (Jason Justiniano: 143, 160, 203). Rather, the drugs and alcohol that Jason had consumed had already worn off (Jason Justiniano: 195, 200). Jennifer testified that the half pill of ecstasy and the marijuana she consumed that night did not affect her ability to see or recall the events of that evening, and she was sober at the time of the incident with defendant (Jennifer Justiniano: 409-410). The alcohol, ecstasy, and marijuana which Edwin had consumed “absolutely” did not impair his ability to see defendant assault Jason (Edwin Justiniano: 487). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 8 March 30, 2015 tenderizer in his hand (Jennifer Justiniano: 404, 425-426; Edwin Justiniano: 464, 466, 511). Edwin and Jennifer kicked and punched defendant, who swung the meat tenderizer at Edwin (Jennifer Justiniano: 426). Defendant fell to the ground, but continued to swing and kick at Jennifer and Edwin (Jennifer Justiniano: 404, 425-427; Edwin Justiniano: 465, 467, 511). Jennifer then left to attend to Jason (Jennifer Justiniano: 405, 427; Edwin Justiniano: 466), while Edwin and defendant continued to fight in front of Escuelita’s (Royster: 311, 322, 329-331; Jennifer Justiniano: 427-428; Edwin Justiniano: 466, 512). Royster, who was still in front of the club, separated defendant and Edwin (Royster: 311, 331-332). Jennifer, from across the street, saw defendant drop the meat tenderizer into a “round thing” with a “plant in the middle” outside a Comfort Inn motel located on the same block as the club (Jennifer Justiniano: 429-432).6 Defendant went into Escuelita’s, but Royster told defendant that he had to leave (Royster: 311, 332-333). After escorting defendant out of the club, Royster saw defendant run toward Ninth Avenue (Royster: 311, 334). At around 5:20 a.m., Lieutenant CHRISTOPHER CHENG, of the Patrol Boro Manhattan South, arrived at 39th Street and Eighth Avenue in response to a 911 call of an assault at that location (Cheng: 33, 48). He saw Jason lying on the sidewalk, as people were “frantic[ally]” pointing toward Ninth Avenue and saying that “the guy who did it” was running in that direction (Cheng: 35, 48). Police Officer RAYMOND PHILLIPS and Sergeant FRANK FAILLA, who were driving in the area, saw defendant running west on 39th Street (Phillips: 57, 65-66; Failla: 86-88, 97- 98). Phillips and Failla also observed people chasing defendant and screaming that he was the assailant who had “hit the guy” (Phillips: 56-58; Failla: 87-89). When the officers stopped defendant, he claimed that he had been “jumped” (Phillips: 57, 65- 66; Failla: 86-88, 97-98). A short time later, Edwin Justiniano was driven by Lieutenant Cheng to where defendant was being held. From the front passenger seat of the police car, which was about eight to 15 feet from defendant (Cheng: 39-40; Failla: 92), Edwin saw defendant and identified him as the person who had assaulted Jason (Edwin Justiniano: 471, 514). Defendant was placed under arrest (Failla: 92). At the time of defendant’s arrest, Officer Phillips noticed that he had an abrasion over his right eye. However, defendant did not ask for or receive medical assistance (Phillips: 60-61, 62, 67, 69-71). 6 Royster subsequently found the meat tenderizer in a garbage bin outside the Comfort Inn motel, and turned it into the police (Royster: 314, 316-317, 334-335; People’s Exhibit 15 [meat tenderizer]). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 9 March 30, 2015 In the meantime, Jason was lying on the ground in a “puddle of blood,” he had dried blood all over his head and a big bruise on his face, and he was bleeding from his mouth and nose (Nazario: 239; Edwin Justiniano: 470-471; Failla: 83, 93). Jason finally regained consciousness in the ambulance (Jason Justiniano: 145, 190; Jennifer Justiniano: 408-409). However, he was unable to feel his legs, could barely speak, and was crying because of the pain he felt on both sides of his head and neck (Jason Justiniano: 145). At Bellevue Hospital, Jason was treated by Doctor STEVEN RUSSELL, a neurosurgeon (Jason Justiniano: 146-147, 190, 192; Russell: 525, 529- 530). Jason had several lacerations, including one on the left side of his head which required three staples to close (Russell: 531-532, 534-535). In connection with the head trauma he sustained, Jason had a “pretty significant” “depressed skull fracture” over his left ear, and his brain in that area was “swollen” (Russell: 533, 536-538, 541- 542). Because Jason opted not to have cosmetic surgery, the skull fracture resulted in an indentation of his skull (Russell: 538-539, 543, 550). In Dr. Russell’s expert opinion, Jason’s injuries were consistent with his having been hit in the head with a “hammer” (Russell: 537, 546). Jason was prescribed antibiotics, anti-seizure medication, as well as morphine for his pain (Jason Justiniano: 147-148; Russell: 37, 547, 555).7 While incarcerated pending his trial in this case, defendant made several phone calls regarding this case and the victims which were recorded by the prison telephone system (Stipulation: 618-622; People’s Exhibit 41-44 [inmate phone log and recorded phone calls]; see Judgment Roll: phone transcript). On February 21, 2011, defendant called an unidentified man and asked “if there was any way possible” he “could find out, what they are planning to do,” because defendant could “give [the unidentified man] up to five thousand dollars . . . or a pair of two thousand dollars . . . so that they won’t do anything” (People’s Exhibit 41-44: 2/21/11 phone call; see Judgment Roll: phone transcript). In that same phone call, defendant stated, “the blond one . . . I knocked him to the floor, I punched him a couple of times and knocked him out . . . I knocked him out. You understand me? Because he was punching me” (People’s Exhibit 41-44: 2/21/11 phone call; see Judgment Roll: phone transcript). 7 Jason’s siblings took turns caring for him for about a week after the incident (Nazario: 242). Jason had difficulty walking for several days, and he was unable to eat hard foods (Jason Justiano: 150, 200). The pain he experienced did not begin to subside until about the second week he was home (Jason Justiniano: 150). Jason missed about one month of work (Jason Justiniano: 149). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 10 March 30, 2015 On March 6, 2011, during a phone conversation with his mother, defendant told her that he “want[ed] to know if it’s possible . . . if there’s a way, that the young men . . . want to resolve you know, ah you know with money or with something, you know” (People’s Exhibit 41-44: 3/6/11 phone call; see Judgment Roll: phone transcript). Defendant later instructed his mother, “tell him, . . . look I am Edwin’s mother, look we are available to pay whatever, you understand me?” (People’s Exhibit 41-44: 3/6/11 phone call; see Judgment Roll: phone transcript). Defendant also told his mother to tell the victims, “we have so much right now, to, to start to settle it, and every time he goes to court, if they don’t go, we will give another five hundred, another thousand . . . what we want is for [defendant] to be out and we are willing to do whatever . . .” (People’s Exhibit 41-44: 3/6/11 phone call; see Judgment Roll: phone transcript). On March 7, 2011, defendant spoke on the phone with a man named “Jon Jon” and told him that “they might be able to take a payment or something, you know” (People’s Exhibit 41-44: 3/7/11 phone call; see Judgment Roll: phone transcript). In another phone call on the same day, defendant informed an unidentified woman that his family wanted to know if they could contact Edwin Justiniano, and that “[his] family is willing to give whatever” so that they “can work this whole situation out” (People’s Exhibit 41-44: 3/7/11 phone call; see Judgment Roll: phone transcript). Defendant added that he had heard the victim received stitches, and “the way he fell, the way he dropped on the floor after I hit, supposedly hit him with a fucking like a like mallet or something on his head . . . looked like if I killed him the way he dropped, . . . and he wasn’t moving and everybody was screaming, you know” (People’s Exhibit 41-44: 3/7/11 phone call; see Judgment Roll: phone transcript). On March 7, 2011, defendant also called Paris Gotti, a well-known “personality” who performed at nightclubs and was defendant’s “lover” (Jennifer Justiniano: 410; Edwin Justiniano: 478). He told Gotti that he was “coming out Wednesday,” and that his family was “very ready” to “pay whatever” (People’s Exhibit 41-44: 3/7/11 phone call; see Judgment Roll: phone transcript). In particular, defendant stated, he had “nine thousand dollars” that he was “ready to give, to have the charges dropped” (People’s Exhibit 41-44: 3/7/11 phone call; see Judgment Roll: phone transcript). Sometime between March and May of 2011, Gotti approached Edwin Justiniano at Escuelita’s and offered him between $7,000 and $10,000 to drop the charges against defendant. Edwin declined the offer (Edwin Justiniano: 480, 520). Later that summer, Jennifer and Edwin were at another nightclub when Gotti D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 11 March 30, 2015 approached Edwin and again offered him approximately the same amount of money to drop the charges (Jennifer Justiniano: 412, 434; Edwin Justiniano: 481, 482). Edwin refused to accept the offer, telling Gotti that it was “Jason’s case” (Jennifer Justiniano: 412, 434; Edwin Justiniano: 482).8 At trial, Jason, Edwin, Jennifer, Nazario, and Royster identified defendant as the person who struck Jason on his head with the meat tenderizer (Jason Justiniano: 118; Nazario: 221; Royster: 299; Jennifer Justiniano: 393; Edwin Justiniano: 456). Cheng, Phillips, and Failla identified defendant as the person they arrested (Cheng: 36; Phillips: 57; Failla: 85). The Defense Case Defendant, EDWIN MENDEZ, who had been convicted of one violent felony and two other felonies, had worked as a bartender at Escuelita’s nightclub from February to September of 2010 (Mendez: 705-707, 748-749). During that time, defendant had seen the Justiniano siblings at the club (Mendez: 707). On one occasion, defendant saw Jennifer Justiniano throw a shot glass, apparently at another female patron with whom Jennifer was fighting. Edwin and Jason Justiniano were present at that time, and Edwin “jumped in” because the female patron “had her boyfriend with her” (Mendez: 741, 744-745). On January 23, 2011 defendant and Anthony Adomis were walking in the vicinity of Escuelita’s (Mendez: 711). The two men saw a “couple of girls” from Canada, one of whom said, “this guy is cute” (Mendez: 711). Adomis “persisted” in trying to convince the girls to take him back to their hotel (Mendez: 713). Defendant then noticed that someone to his right was yelling. When defendant turned around, he saw Jason Justiniano coming toward him and saying, “No one is taking my sister to a hotel, not while I’m here” (Mendez: 713). Defendant responded, “Nobody is talking to you” (Mendez: 714). After a brief argument between Jason, Adomis, and defendant, Jason “came at” defendant and punched him, which “began” the “first fight” (Mendez: 714). As Jason and defendant were “going punch for punch” with each other, they fell to the ground where they exchanged more punches. When they got up, defendant saw Jennifer Justiniano, Stephanie Nazario, Edwin Justiniano, and another man striking Adomis (Mendez: 715-718). Defendant ran across the street and pushed 8 In March 2011, defendant sent a request on Facebook to be “friends” with Edwin, who accepted the invitation. In an email to Edwin on Facebook, defendant said he wanted to “apologize” and he asked Edwin how he was doing (Edwin Justiniano: 483-485). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 12 March 30, 2015 Jennifer and Nazario off of Adomis; defendant never saw Adomis again that day. Defendant started to fight with Edwin, and then Jennifer and Nazario began attacking defendant (Mendez: 718-719). At one point, defendant was struck from behind and fell to the ground (Mendez: 718). When defendant turned around, he saw Jason in the crosswalk and realized that Jason had hit him (Mendez: 718). Defendant got up and walked toward the southwest corner of 39th Street and Eighth Avenue. Jason, Edwin, Jennifer, Nazario, and the man who had participated in the attack on Adomis started to approach defendant (Mendez: 719-720). Defendant ran toward Escuelita’s, but the group caught up to him before he reached the entrance to the club. A brief struggle occurred, during which defendant slipped out of his jacket and fled (Mendez: 720). Defendant ran across the street, but the group caught up to him again and they began fighting. During this time, yet another unidentified man jumped in, and the group of six knocked defendant to the ground (Mendez: 721). Defendant remained on the ground “for a while” as the group kicked him, including in his eye, which caused it to bleed (Mendez: 721-722). When defendant got up, he saw a food vendor, who had a meat tenderizer on his cart. Defendant picked up the meat tenderizer and screamed, “Chill,” as Jennifer and Nazario shouted, “Get him. Fuck him up” (Mendez: 722, 729). Edwin tried to come around defendant’s right side, and Jason was being “aggressive” (Mendez: 723). When Jason “lunged” at defendant and tried to punch him, defendant “react[ed]” by striking Jason with the meat tenderizer, causing Jason to fall to the ground (Mendez: 723). Defendant then discarded the meat tenderizer on the ground (Mendez: 724). At the time defendant hit Jason with the meat tenderizer, defendant was “afraid” and did not intend to “injure anybody,” but rather, only wanted “to keep them away” from him (Mendez: 728). Defendant never struck Edwin with the meat tenderizer (Mendez: 728). Meanwhile, at about 5:00 a.m., DOMINICK O’GRADY, an operations manager at Escuelita’s, was in the club when he heard over his headset “for security to [come] to the front door” (O’Grady: 627-629, 636-637, 668, 680).9 O’Grady looked at a computer screen containing video surveillance, and saw five or six people kicking and punching a person on the ground by the corner near the Chase Bank (O’Grady: 637-638, 690-691). Because the video footage was not of “HD quality” and he could not “zoom in,” O’Grady was unable to see who exactly was involved in the altercation 9 O’Grady had a conviction for possessing a loaded gun; in that case, O’Grady falsely told the police officer who arrested him that he was an auxiliary police officer (O’Grady: 669, 672). At the time of defendant’s trial, O’Grady was incarcerated on grand larceny charges (O’Grady: 628). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 13 March 30, 2015 (O’Grady: 637, 690). O’Grady then went to the club’s entrance door, from where he saw an outer circle of 20 to 25 people and an inner circle of five to six people near the southwest corner of 39th Street and Eighth Avenue; the people in the inner circle appeared to be attacking a person (O’Grady: 638-640, 691). When the crowd opened up, Jason Justiniano “stumbl[ed]” to the crosswalk and fell to the ground (O’Grady: 640, 697-698). O’Grady also saw defendant holding a meat tenderizer with a “stunned look on his face” (O’Grady: 640, 693). Defendant dropped the meat tenderizer on 39th Street, just west of Eighth Avenue, and walked “at a fast pace” toward Escuelita’s (O’Grady: 640, 694). In front of Escuelita’s, defendant and Edwin exchanged punches, and Edwin fell to the ground (Mendez: 724, 768). An Escuelita’s employee then allowed defendant to go into the club (Mendez: 725; O’Grady: 642-643). However, “Sal,” who was in charge of security, told defendant that he could not stay in the club (Mendez: 725; O’Grady: 644). As defendant left Escuelita’s, he heard “someone from the crowd” yell, “Get him” (Mendez: 725). Defendant ran to Ninth Avenue (Mendez: 725-726; O’Grady: 644), where he asked a police officer for assistance (Mendez: 727). A group which had chased defendant from Escuelita’s also reached Ninth Avenue and was yelling to the officers (Mendez: 725-727). A sergeant put defendant in the back seat of a police car and attempted to “sort out what exactly [was] going on” (Mendez: 727; O’Grady: 646). The police drove defendant to 39th Street and Eighth Avenue, where Lieutenant Cheng was talking to a “few people on the sidewalk,” one of whom identified defendant (Mendez: 728; O’Grady: 646-648). Defendant was then taken to the precinct (Mendez: 728). After his arrest, defendant was “desperate” and offered Edwin and Jennifer money to drop the charges against him (Mendez: 731, 734). In March or April of 2011, O’Grady saw Paris Gotti at Escuelita’s. At that time, during a meeting with Edwin and Jennifer, Gotti sought to convince them that “it was just a fight” and that they should “do the right thing” (O’Grady: 664, 666). During a phone call from Riker’s Island to an unidentified female caller, defendant said that Sal and another Escuelita’s employee would be a “problem” because they had both told the police that defendant “did it” (Mendez: 768-769). On March 15, 2011, defendant told an unidentified person over the phone that his mother was “out there doing what she’s gotta do, offering money to everybody” (Mendez: 782). During a phone conversation on March 5, 2011, Anthony Adomis told defendant, “They did not do anything to me,” to which defendant replied, “I told them that they beat you up. You have to say that they did. You have to say that they really beat me up badly and I didn’t go to the hospital because I just wanted to go D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 14 March 30, 2015 home” (Mendez: 772). In a phone call on March 24, 2011, defendant informed Adomis that defendant’s mother would contact Adomis on Facebook, and that defendant would “take care” of Adomis for “going out of [his] way” (Mendez: 773, 775). Defendant also said that he would contact Adomis again and instruct Adomis as to “exactly what [Adomis would] have to say or do” (Mendez: 774). Defendant told Adomis that he would have to testify that the Justiniano siblings were “stomping on [Adomis], even the girl,” and that Adomis received a black eye and his tooth became loose as a result of the attack (Mendez: 774, 775). From October 26, 2011 until late November 2011, defendant and O’Grady were housed together in the same unit at the Manhattan House of Detention (O’Grady: 682-683; Mendez: 775, 777). During the first week of November 2011, defendant and O’Grady discussed the facts of defendant’s case with each other (O’Grady: 682-683; Mendez: 775, 777). Once defendant found out Edwin’s Facebook name, he sent Edwin a Facebook message stating he wanted to “apologize” and asking how “everything [was] going” (Mendez: 778). Defendant acknowledged that he wanted to offer money to Edwin and Jason to drop the charges (Mendez: 779). At trial, defendant identified People’s Exhibit 15 as the “mallet” he had used to strike Jason Justiniano on January 23, 2011 (Mendez: 763). POINT I THE APPELLATE DIVISION CORRECTLY CONCLUDED THAT THE THREE JURY NOTES REQUESTING MATERIALS NOT IN EVIDENCE WERE NOT SUBSTANTIVE INQUIRIES THAT REQUIRED COMPLIANCE WITH THE PROCEDURES MANDATED BY CPL 310.30 (Answering Defendant’s 500.11 Letter, Section II, pp. 3-6). During deliberations, the jury sent ten separate notes to the trial court. The last three notes, which the trial court marked as Court Exhibits 10, 11, and 12, requested items that were not in evidence.10 In a unanimous decision, the Appellate Division 10 The tenth and final note (Court Exhibit 13) stated that the jury had reached a verdict. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 15 March 30, 2015 determined that “[n]one of these [three] notes were substantive inquiries that required compliance with the procedures mandated by CPL 310.30.” Mendez, 116 A.D.3d at 513. Instead, the Appellate Division held, “these notes necessitated the ministerial actions of informing the jury that none of the items they requested were in evidence.” Id. On appeal, defendant, characterizing the three jury notes at issue as “substantive,” contends that the trial court’s failure to respond on the record to the notes requires reversal under this Court’s recent decision in People v. Silva, 24 N.Y.3d 294 (2014) (Defendant’s 500.11 Letter at 1). However, in Silva, this Court merely reiterated the principle that the record must indicate compliance with the procedures set forth in CPL 310.30 and People v. O’Rama, 78 N.Y.2d 270 (1991), when a trial court receives notes from a deliberating jury requesting substantive information. Since the three notes in this case were ministerial in nature, defendant’s reliance on Silva is inapt. Thus, because the Appellate Division correctly applied the law pertinent to this case, its decision should be affirmed. A. During defendant’s trial, the People, by stipulation, introduced into evidence six recorded telephone calls that defendant had made while incarcerated during the pendency of this case (618-622; People’s Exhibits 41-44). Because portions of these recorded conversations were in Spanish, the jury was given written transcripts of the phone conversations which included translations of the Spanish portions (622; see transcript judgment roll). The transcripts were provided to the jury while the recordings were played during the trial, but they were not introduced into evidence. In particular, the court explained to the jury that the transcripts were “guides” that the jury had the “option” of using if it wanted, but that the transcripts were “not evidence” (622). The court also advised the jury that, during deliberations, if the jury “want[ed] to hear the tapes we can send the tapes into the room, but can’t send the transcripts” (622). If the jury requested to have “the transcript with the tape,” the court noted, “we will bring you out here, distribute the transcripts in conjunction with your listening to the tapes” (622). In addition, during the testimony of Raymond Lorenzo, the DJ at Escuelita’s who had witnessed the assault in this case, the People introduced into evidence a phone call he had made to 911 at 5:14 a.m. on January 23, 2011 (569; People’s Exhibit 40; Court Exhibit 3). During defendant’s case, the 911 call of an unknown caller D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 16 March 30, 2015 which was placed at 5:15 a.m. on the same day was admitted in evidence (797; Court Exhibit 3; Defendant’s Exhibit E).11 Late in the afternoon on December 15, 2011, after the parties delivered their summations, the court administered its final charge to the jury. The court told the jury, “You could have any exhibit in the jury room during your deliberations. You could have the tapes. You cannot have the transcripts” (869). The court added, “If you want the assistance of the transcripts, which are merely a guide, ask us and we will bring you out, play the tape” (869). At around 4:45 p.m., the court concluded its charge and told the jurors that they would have about 15 minutes to deliberate that day (896). In a note dated December 15, 2011, with the time 4:46 written on it, the jury requested “the call with Anthony, that was on the transcript.” The note was marked as Court Exhibit 4. On the next court date, December 19, 2011, the jury submitted eight additional written notes to the court, before reaching its verdict at the end of the day (see Court Exhibits 5-12). In a note marked as Court Exhibit 5, which had the time 9:56 written on it, the jury requested “Biggies (Before the Michael Jackson reference).”12 The jury’s seven other notes from that day had no times written on them. In a note marked as Court Exhibit 6, the jury requested “DJ’s Testimony (Part where he describes the fight).” In a note marked as Court Exhibit 7, the jury asked for “Matlot [sic], Pictures (all).” In a note marked as Court Exhibit 8, the jury requested “Edwin (Defendents [sic]) testimony, Part before he ran over to Anthony [arrow symbol] end of fight.” In a note marked as Court Exhibit 9, the jury asked for “A reread of the charges in abbreviated form in particular ‘self-defense’ definition.” In a note marked as Court Exhibit 10, the jury requested “Phone transcript we were given in court, (Spanish translations).” In a note marked as Court Exhibit 11, the jury asked, “WERE there 911 calls related to the incident that we did not here [sic]. Can we hear them or have them read.” Finally, in a note marked as Court Exhibit 12, the jury requested “the transcripts we were given when we were listening to the tapes on 11 After the 911 call of the unknown caller was played for the jury, defendant requested to introduce into evidence all the 911 calls related to this case. The People objected, and the court stated it would “consider” the application (799-800). There is no indication in the record that defendant ever again requested, or that the court permitted, the admission into evidence of additional 911 calls. 12 The jury was apparently referring to Joel Royster’s testimony (300). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 17 March 30, 2015 conversations while Mr. E. Mendez was incarcerated. [M]ainly what Edwin said he did to Jason and.” During the proceedings on December 19, 2011, the trial court remarked that there were “several notes” from the jury and that the “lawyers are working on them” (911). The court added that there were “no time[s] on the notes” and that they were in “no particular order” (911). In describing some of the notes, the court stated that the jury had requested: the “DJ’s testimony, [the] part where he describes the fight” (Court Exhibit 6); “the mallet and pictures” (Court Exhibit 7), which, the court noted, “have been sent in”; “the defendant’s testimony, the part where he ran over to Anthony after the fight” (Court Exhibit 8); and, that the court “reread the charges in abbreviated form, in particular [the] self-defense definition” (Court Exhibit 9) (911). Defense counsel -- apparently referring to the jury’s note marked as Court Exhibit 5, in which they had requested “Biggie[’]s” (Royster’s) testimony from “[b]efore the Michael Jackson reference” -- noted that the People believed the jury only wanted to hear Royster’s direct testimony up to when he saw Jason Justiniano knocked to the ground. However, defense counsel was of the view that the note called for a re-reading of Royster’s direct and cross-examination testimony up to that point (912). When the court asked defense counsel if there was anything with respect to the cross-examination of Royster on this topic that counsel thought was “particularly significant,” counsel said, “No” (912). However, defense counsel then directed the court’s attention to a few pages of cross-examination that he believed were relevant to the jury’s request for Royster’s testimony (914). The court decided that it would tell the jurors that only Royster’s direct testimony would be re-read to them, but that they would have an “absolute right” to hear his cross-examination testimony, if they were to make such a request (912). The court then asked the parties to address the jury’s note requesting “the call with Anthony, that was on the transcript” (Court Exhibit 4) (912). After being informed that there was no call with Anthony Adomis reflected on the transcripts, but rather, that defendant’s phone conversation with Adomis had been elicited verbally from defendant during his cross-examination and re-direct examination, the court stated that it would inform the jury of that (913). At 12:35 p.m., the jury entered the courtroom. The court read into the record the jury notes marked as Court Exhibits 4 to 9 (914-915). Regarding the note marked as Court Exhibit 4, the court explained to the jury that there was no recorded call D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 18 March 30, 2015 between Adomis and defendant, but rather defendant referred to the call during his testimony. The court informed the jury that if it wanted to have read back that part of defendant’s testimony, it should ask for it (914-915). With respect to the note marked as Court Exhibit 7, the court told the jury, “You want the pictures. The mallet. That has been given to you” (915). The jury was then read back the testimony that they requested in the notes marked as Court Exhibits 5, 6 and 8 (915). Thereafter, the court reinstructed the jury on the justification defense as they had requested in the note marked as Court Exhibit 9 (916-924). At 1:53 p.m., the jury left the courtroom to resume their deliberations (925). At 5:05 p.m., the court announced that the jury had reached a verdict (925). The record is silent regarding the court’s responses to the jury notes marked as Court Exhibits 10, 11, and 12.13 B. There is no dispute that when a trial court receives a “substantive” inquiry from a deliberating jury, the court must give “meaningful notice” to defense counsel of the specific content of the jury’s request, and provide a “meaningful response” to the jury. See CPL 310.30; O’Rama, 78 N.Y.2d at 276 (1991); People v. Kisoon, 8 N.Y.3d 129, 134 (2007). In O’Rama, this Court outlined the procedure that should be followed when a deliberating jury requests substantive information. First, a note should be marked as a court exhibit and read into the record in the presence of the attorneys before the jury is returned to the courtroom. Second, the judge should then allow counsel to comment and recommend responses to the jury’s inquiry. Third, the judge should articulate the substance of its proposed response and allow the attorneys to offer modifications before the jury returns to the courtroom. And, fourth, the judge should read the note to the jury to correct any inaccuracies before providing such information or instruction as the court deems proper. O’Rama, 78 N.Y.2d at 277-28; Silva, 24 N.Y.3d at 299. At the same time, the law is also clear that when a jury submits a note concerning a ministerial or non-substantive request, the court may respond to the note without notifying, or seeking the input from, defense counsel. See People v. 13 There is no support in the record for defendant’s speculation that the notes marked as Court Exhibits 10, 11 and 12 “were apparently sent by the jury sometime during the afternoon of December 19, 2011, between 1:53pm when the jury recommenced deliberations, and 5:05pm when the jury delivered its verdict” (Defendant’s 500.11 Letter at 3). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 19 March 30, 2015 Ochoa, 14 N.Y.3d 180, 188 (2010); People v. Hameed, 88 N.Y.2d 232, 240-41 (1996), cert. den., 519 U.S. 1065 (1997). In other words, as defendant does not dispute, when a court is responding to a ministerial or non-substantive communication from the jury, compliance with the procedures specified in CPL 310.30 and O’Rama is not required. Ochoa, 14 N.Y.3d at 188 (jury note which related only to the foreperson’s concern about the manner in which the verdict was to be delivered “was nothing more than an inquiry of a ministerial nature,” and thus, “the [trial] judge was not required to notify defense counsel nor provide them with an opportunity to respond, as neither defense counsel nor defendant could have provided a meaningful contribution”); People v. Ziegler, 78 A.D.3d 545, 546 (1st Dept. 2010) (compliance with CPL 310.30 and O’Rama procedure not required where two jury notes “only necessitated the ministerial actions of sending certain exhibits into the jury room and informing the jury that an additional requested item was not in evidence”). This Court has held that a jury note is ministerial when it concerns a matter that is “‘wholly unrelated to the substantive legal or factual issues of the trial’” and “b[ears] no substantial relationship to the defendant[’s] opportunity to defend against the charges.” Hameed, 88 N.Y.2d at 241, citing People v. Harris, 76 N.Y.2d 810, 812 (1990). As this Court has also found, a ministerial inquiry is “unrelated to the substance of the verdict,” and one for which “neither defense counsel nor defendant could have provided meaningful contribution.” Ochoa, 14 N.Y.3d at 188; People v. Guardino, 62 A.D.3d 544, 546 (1st Dept. 2009) (“A court officer’s advice to the jury that a requested item was not available for review because it was not in evidence constituted a ministerial function”). “As a general rule, errors in criminal cases are reviewable on appeal only if they are adequately preserved by the appellant.” Silva, 24 N.Y.3d at 299. In a “very narrow category of cases,” this Court has recognized “so-called ‘mode of proceedings’ errors that go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted.” People v. Kelly, 5 N.Y.3d 116, 119-120 (2005); Silva, 24 N.Y.3d at 299. “Errors within this tightly circumscribed class are immune from the requirement of preservation.” Kelly, 5 N.Y.3d at 120. Thus, for example, a trial court’s failure “to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error,” for which normal preservation principles do not apply. Silva 24 N.Y.3d at 299-300 (underline added). In this case, defendant wishes to take this generous rule, where an infringement of a statutory right (CPL 310.30) permits him a boon remedy of a new D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 20 March 30, 2015 trial -- without any preservation, any showing of prejudice, or engaging in a harmless error analysis -- and extend that windfall to a trial court’s handling of jury notes that are not substantive, but rather, only ministerial. However, neither case law nor fairness supports such a position. Specifically, on appeal, defendant claims that the trial court committed a “mode of proceedings” error by its “failure to respond” to the jury’s three notes at issue in accordance with CPL 310.30 and the O’Rama guidelines (Defendant’s 500.11 Letter at 1, 3-5). As an initial matter, as the Appellate Division found in expressly rejecting defendant’s mode of proceedings argument (Mendez, 116 A.D.3d at 513), defendant’s claims are unreviewable in view of the fact that he failed to make a sufficient record to adequately litigate his claim on appeal. See People v. Fernandez, 81 N.Y.2d 1023, 1024 (1993); People v. Kinchen, 60 N.Y.2d 772, 773-74 (1983). After all, since these notes were ministerial in nature, as explained infra, defendant needed to preserve his current complaint regarding how the trial court handled them. See People v. Gerrara, 88 A.D.3d 811 (2d Dept. 2011) (“[s]ince the notes were not substantive, any failure by the trial court to comply with CPL 310.30 did not constitute a mode of proceeding error . . . Therefore, this claim of error required preservation”). Here, there is no question that the three jury notes at issue were written, as well as marked as Court Exhibits 10, 11, and 12. That there is no transcription of the notes being made court exhibits indicates that there were events and colloquies which took place during the jury’s deliberations that were simply not transcribed, and counsel did not object to that procedure. The lack of transcribed colloquies between the judge and the attorneys regarding the jury’s notes marked as Court Exhibits 10, 11, and 12, and the court’s responses to them, does not, then, conclusively demonstrate that no such colloquies and responses took place. Therefore, defendant’s failure to make a record below regarding any error committed by the trial court in its handling of the three jury notes at issue bars defendant’s current complaint. Moreover, contrary to defendant’s contention that the three jury notes were substantive (Defendant’s 500.11 Letter at 3-5), the notes were, in fact, purely ministerial in nature. Therefore, the court was not required to comply with the procedures mandated by CPL 310.30 and suggested in O’Rama. After all, there is no question that each of the notes requested items that were not admitted into evidence at the trial. In particular, the notes marked as Court Exhibits 10 and 12 requested the written transcripts that the jury had been given during the trial to help them follow along with what was being said on the audio recordings of defendant’s telephone calls D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 21 March 30, 2015 from prison. But, since these transcripts were only a guide and not evidence, the court certainly did not need input from defense counsel to carry out what would have been its merely ministerial action of telling the jurors that they would not be allowed to view the transcripts since they were not in evidence. As discussed, during its final instructions, the court had informed the jury that they could request to see or hear any trial exhibit during their deliberations, such as the tapes of defendant’s recorded phone conversations from prison, but that they would not be permitted to have the transcripts of those tapes (869). Significantly, too, since defendant has never disputed that the transcripts were not evidence, he cannot now legitimately claim that the jury’s two notes asking for the transcripts were anything but non-substantive requests for which neither defense counsel nor defendant could have provided a meaningful contribution in responding to, and which were unrelated to the substantive legal or factual issues of the trial. During its final charge, the court told the jury that if they “want[ed] the assistance of the transcripts, which are merely a guide,” they could ask the court and “we will bring you out, play the tape” (869). Assuming the court chose that method to deal with the two notes requesting the transcripts, it would not put the court’s handling of the notes in Court Exhibits 10 and 12 back in the O’Rama framework, since showing or replaying an exhibit in evidence is a ministerial task. See People v. Mays, 20 N.Y.3d 969, 970-971 (2012) (“playing the video again once [the lights were dimmed] or attempting to stop the video at the place the jurors wished is not the kind of substantive response that implicates O’Rama”). Indeed, as the court instructed, the jury would have been allowed to have the tapes of defendant’s phone calls inside the jury room and played any part of them as they wished without any court intervention (869). Likewise, the jury’s note marked as Court Exhibit 11, in which they asked if they could hear or have read to them 911 calls relating to the incident in this case that they had not heard at the trial, was a request for items that were not admitted in evidence at trial. As such, the jury’s request for any 911 tapes that were not in evidence also necessitated the ministerial action of informing them that they were not permitted to view or hear items not in evidence. Zeigler, 78 A.D.3d at 546 (jury notes “only necessitated the ministerial actions of sending certain exhibits into the jury room and informing the jury that an additional requested item was not in evidence”). Since the record reveals that the jury inquiry was purely ministerial in nature, adherence to the O’Rama procedures was not required. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 22 March 30, 2015 Moreover, although the record does not contain any explicit reference to how the court dealt with the jury notes marked as Court Exhibits 10, 11 and 12, defendant has not overcome the presumption of regularity that the trial court handled the notes appropriately. See Mendez, 116 A.D.3d at 513. After all, official proceedings are invested with a presumption of regularity, which may be overcome only by “substantial evidence.” People v. Andrew, 1 N.Y.3d 546, 547 (2003); People v. Velasquez, 1 N.Y.3d 44, 48 (2003); People v. Dominique, 90 N.Y.2d 880, 881 (1997). “The general presumption is that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done.” Matter of Marcellus, 165 N.Y. 70, 77 (1900); accord Dominique, 90 N.Y.2d at 881; People v. Rallo, 39 N.Y.2d 217, 225 (1976) (Jasen, J., concurring). The presumption applies as well to appeals of criminal cases. Dominique, 90 N.Y.2d at 881; see People v. Smyth, 3 N.Y.2d 184, 187 (1957) (“there is a presumption of regularity of criminal proceedings”). In order to rebut the presumption of regularity, the party seeking appellate relief must offer “substantial evidence” that an error was made. Id.; see People v. Buonincontri, 6 N.Y.3d 726, 726-27 (2005); Velasquez, 1 N.Y.3d at 48 (2003); see also Smyth, 3 N.Y.2d at 187 (once the defendant has been convicted, the People are not required to assume the burden of establishing the propriety of the judgment in the absence of evidence to the contrary). Here, at the outset, as discussed, there is no question that the trial court marked these three jury notes, as well as the jury’s other six notes, as court exhibits. Thus, it is clear that the court saw each of the notes, marked them accordingly, and knew that it was obligated to respond to each of the jury’s requests. Further, the trial court’s actions throughout deliberations further supported the presumption that the trial court handled all of the jury’s notes properly. Indeed, defendant did not dispute before the Appellate Division that the court properly read into the record, informed counsel of, and responded to the jury’s six notes requesting read-back of testimony, re-instruction on the justification defense, and items admitted in evidence during the trial (see Defendant’s Appellate Division Brief at 21). Clearly, then, the trial court was well-aware of and adhered to its O’Rama obligations in handling what it recognized were substantive jury notes. And, in that regard, the court was assiduous in allowing counsel the opportunity to participate in the court’s formulation of its responses to such notes. For instance, as recounted above, defense counsel was permitted to explain that he thought the jury’s request for “Biggie’s” testimony called for a read-back both the direct-examination and cross-examination testimony of Royster. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 23 March 30, 2015 Before this Court, defendant does not cite to substantial evidence to overcome the presumption that the trial court properly responded to the jury’s three notes requesting items not in evidence. Instead, defendant relies principally on this Court’s decision in Silva in arguing that the trial court’s failure to respond on the record to these three notes requires a reversal of his conviction (Defendant’s 500.11 Letter at 1, 4-5). However, defendant’s reliance on Silva is misplaced. In Silva, this Court held that “a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenets of CPL 310.30” and that “[t]he ‘presumption of regularity’ . . . cannot salvage an O’Rama error of this nature.” People v. Silva, 24 N.Y.3d at 299-300. But, since the notes at issue here were ministerial, the trial court was not required to comply with procedures set forth in O’Rama and CPL 310.30, and the presumption of regularity would still apply.14 To the extent defendant claims that “whatever support may have existed for the First Department’s view of what constitutes a ministerial request was extinguished by this Court’s decision in Silva” (Defendant’s 500.11 Letter at 4), he is wrong. As defendant acknowledges (id.), Silva and its companion case involved the trial courts’ failure to respond on the record to jury notes requesting re-instruction on the law and a read-back of testimony. Silva, 24 N.Y.3d at 297-299. As this Court found, such notes were substantive requests for information, thus requiring the trial court to make a record of compliance with the O’Rama guidelines. However, the three notes at issue in this case did not involve a request for legal instructions or a read-back of testimony, but rather, were requests for items not in evidence. Given the ministerial nature of the requests, which merely required that the jury be informed that they were not permitted to receive items not in evidence, defendant’s attempt to equate the notes in this case to those in Silva is untenable. Indeed, defendant does not explain how he or his trial counsel could have offered any meaningful contribution in formulating such a 14 Defendant reliance on People v. Cruz, 14 N.Y.3d 814 (2010) is inapt. In Cruz, the trial court had admitted defendant’s inculpatory written statement into evidence in error, but never told the jury that it had reversed its ruling regarding its admissibility. During deliberations, the jury sent a note asking to see that statement. This Court found that the record in Cruz revealed a “significant, unexplained irregularity in the proceedings” that included lack of confirmation of whether counsel or even the trial judge had any knowledge of the note at issue, or whether the defendant’s unadmitted statement had been shown to the jury. Cruz, 14 N.Y.3d at 816. Hence, this Court concluded, defendant met his burden of rebutting the presumption of regularity by substantial evidence. Here, by contrast, defendant does not argue that he overcame the presumption of regularity, thus any comparison of his case to Cruz is misplaced. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 24 March 30, 2015 basic response, which also bore no substantial relationship to defendant’s opportunity to defend against the charges. Likewise, there is no merit to defendant’s claim that “decisions from the First Department and other departments that have found notes of this nature [requesting items not admitted in evidence] to not require the procedures mandated by O’Rama have been resoundingly rejected by this Court in recent years” (Defendant’s 500.11 Letter Brief at 4). After all, both People v. Walston, 23 N.Y.3d 986, 990 (2014) and People v. Tabb, 13 N.Y.3d 852 (2009) involved the trial court’s failure to respond on the record to substantive jury notes requesting reinstruction of legal definitions for crimes and the justification defense. Plainly, notes that deal with legal instructions to the jury are far different from notes asking to see items that are not in evidence. The former requires instructions to the jury on the very charges they are deciding, thus requiring input from counsel, whereas the latter simply requires a response that the jury is not allowed to receive items not in evidence. Defendant suggests that because the jury, in their note marked as Court Exhibit 12, “pointed the trial court to specific portions of the transcripts the jury was interested in reviewing,” that made their request a substantive inquiry because “input from counsel would have been critical in crafting a response” (Defendant’s 500.11 Letter at 5). Defendant is wrong. The jury would not have been entitled to a specific portion of transcripts, which were indisputably not in evidence, and thus, no input from counsel would have been required to inform the jury of such. Notably, too, in Mays, this Court ruled that even requesting a specific portion of an exhibit was ministerial. In particular, this Court held, “playing the video again once [the lights were dimmed] or attempting to stop the video at the place the jurors wished was not the kind of substantive response that implicated O’Rama.” Mays, 20 N.Y.3d 969 (underline added). For similar reasons, defendant’s suggestion that simply because the jury asked to see a specific portion of transcripts that were not in evidence, that made their request substantive instead of ministerial, is unfounded. To the extent defendant claims that the jury “may have been speculating about matters not in evidence” in connection with their request for the 911 calls not in evidence (Defendant’s 500.11 Letter at 5), there was nothing about their note in Court Exhibit 11 which suggested anything like that was happening in the jury room. Instead, the jury merely asked the court if there were other 911 calls they had not heard and whether they could hear those calls. Such an inquiry merely required the D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 25 March 30, 2015 ministerial action of informing the jury that they were not permitted to view or hear items not in evidence, an thus did not implicate O’Rama. In sum, the Appellate Division correctly held that because the jury’s three notes requesting items not in evidence were ministerial, the trial court was not required to comply with the procedures set forth in CPL 310.30 and O’Rama. POINT II THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION REGARDING THE EXTENT TO WHICH EVIDENCE OF THE JUSTINIANOS’ PRIOR VIOLENT ACTS WAS ADMITTED AT THE TRIAL (Answering Defendant’s 500.11 Letter, Section III, at 6-8). On appeal, defendant claims that the Appellate Division erred when it rejected his claim that the trial court improperly precluded him from introducing evidence of the Justinianos’ “prior violent acts” to support his justification defense and to impeach the Justinianos’ credibility. In fact, as the Appellate Division properly found, the trial court permitted defendant a sufficient opportunity to demonstrate, in connection with his justification defense, his knowledge of violent or aggressive conduct displayed by Jason, Jennifer and Edwin Justiniano prior to the incident in question. As the Appellate Division also correctly held, to the extent the trial court did not allow defendant to engage in an unrestricted fishing expedition into any and all prior violent acts that may have been committed by the siblings, the court’s limitation on such evidence was a reasonable exercise of discretion and a proper determination that, in the context of the particular justification defense actually presented by defendant, the prior violent acts had very little probative value. In addition, as the Appellate Division correctly determined, defendant did not preserve his claims that evidence of the Justinianos’ prior acts were admissible to impeach their credibility, or that any of the court’s evidentiary rulings impaired his constitutional right to present a complete justification defense. A. At the trial, during cross-examination of Jason Justiniano, defense counsel asked him whether it was “true” that Jennifer Justiniano “likes to fight.” The People objected, and the court ruled, “Sustained so far, but we’ll see” (164). In response to further questioning by defense counsel, Jason testified that he had been at Escuelita’s D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 26 March 30, 2015 with Jennifer on four occasions prior to the night in question, and that she had been involved in “fights” at the club. In describing one “altercation,” Jason said that Jennifer “wasn’t really fighting,” but rather, he “was doing the fighting for her” (164- 165). When counsel asked Jason what had caused the altercation, the court interjected and stated that, while the “topic” was “okay,” they were not going to “relitigate” the “entire event” of that prior altercation (165). The trial was adjourned to the following morning, with the court advising defense counsel that he would have until then to consider “what precise questions” he thought would be appropriate to ask Jason about the prior altercation involving Jennifer (165). The next morning, the court asked defense counsel to explain the “relevance” of Jennifer’s “supposed[ ]” prior “assaultive conduct” (167). Defense counsel asserted that when he had interviewed Jennifer and Edwin Justiniano before the trial, they had told him that “they love to fight” (168-169). Counsel further claimed that defendant knew Jennifer and Edwin “from the nightclub,” and that “if he knew about their assaultive behavior prior to th[is] incident,” that would be relevant to defendant’s “self-defense” claim (168). Counsel added that he had “focused exclusively” on Jennifer’s “prior fighting activity” because, in his view, they were “prior bad acts” (168). The court ruled that defense counsel would be permitted to ask Jennifer and Edwin, but not Jason, whether Jennifer had told counsel that she “likes to fight” (169, 171). Counsel requested permission to ask Jason what prior fights he had been in, “the context of the fights,” and whether Jason “initiates fights” (170). The court responded, “I don’t think so,” since Jason had not been arrested or sued civilly “for being in a fracas” (170). The court added that, even assuming Jason had previously been involved in fights, “how do we know he wasn’t defending himself? How do we know he was not a knight [in] shining armor? Coming to the defense of people” (170-171). The court invited defense counsel to proffer reasons why any prior fighting by Jason should be considered “bad acts,” but defense counsel did not give any reasons (171). Counsel said he also wanted to ask Jason if he had been banned from Escuelita’s for fighting, “because [counsel] d[id]n’t know if he was.” The court held that such questioning was permissible (170). When cross-examination resumed, Jason testified that neither he nor his siblings had been banned from Escuelita’s as a result of the previous fight he had at the club (173). Then, when defense counsel asked Jason to describe “what happened” in that prior fight, the court sustained the People’s objection (173). Later during cross-examination, Jason testified that he had required medical attention as a result of the prior altercation at Escuelita’s (197). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 27 March 30, 2015 During his cross-examination of Jennifer Justiniano, defense counsel elicited that Jennifer had been involved in “maybe one or two” fights at Escuelita’s (413). Regarding the fight that involved Jason, Jennifer explained that she was dancing at the club and some guys approached her to dance. She told them that she was “gay” and did not want to “bump and grind on a guy” (414). One of the men grabbed her, put her up against a wall, and said, “[I]f you are not dancing with me[,] you are not moving.” Jason saw what had happened and “the fight started” (414). The court interjected, “I think we are finished with that one” (414). Next, defense counsel elicited that Jennifer was never banned from Escuelita’s “for bad behavior [or] for fighting” (414). Although Jennifer had seen defendant on previous occasions when he was a bartender at Escuelita’s, she never “interact[ed]” with him (415). Jennifer denied that she “like[d] to fight,” although, she explained, “If a fight comes to me I will defend myself.” When Jennifer had met with defense counsel during the summer, she recalled telling him that she liked to fight. However, she also told counsel, “[W]hen we are approached to fight, yes, we are going to fight” (432-433). During his trial testimony, defendant claimed that he was being attacked by Jason, Jennifer, and Edwin Justiniano, Stephanie Nazario, and two unidentified men at the time he picked up a meat tenderizer from a food vendor’s cart in order to keep them at bay. Defendant further claimed that Jennifer and Nazario were yelling, “Get him. Fuck him up,” when Jason “lunged” at defendant and tried to punch him. At that point, according to defendant, he “react[ed]” by striking Jason with the meat tenderizer (722-724, 729). Defendant also testified that he “had some acquaintance with the Justinianos” before the incident in question. However, the court did not allow defendant to respond to defense counsel’s question regarding his “general knowledge” of any prior fighting by the Justiniano siblings at Escuelita’s (740). When counsel then inquired whether defendant had “personally observe[d] any fighting involving any of the siblings at [the club] on any prior occasion,” and defendant replied, “Yes,” the court asked, “Did they have weapons in their hands prior to the fighting[?]” Defendant replied that there was one incident in which Jennifer “threw a shot glass at the bar” (741). Defendant also testified that Edwin and Jason were present at the time Jennifer threw the shot glass (741). At that point, a sidebar conference was held, and the court asked defense counsel to explain what evidence he “w[as] hoping to elicit” and why it had a “place in D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 28 March 30, 2015 this trial” (741). Counsel argued that “any knowledge” on the “part of somebody” who claims that he “acted in self-defense at the time of the incident” regarding “[prior] assaultive behavior on the part of the people he is engaged in the altercation with” was “relevant to his perception that he is in danger” (741). The court noted, “Observing one incident is not tantamount to a reputation in a community or a reputation among some smaller group of people that a person has a reputation for violence” (742). Furthermore, the court pointed out, Jennifer’s act of “throwing one glass . . . in a bar” was “not tantamount to a general reputation for violence” which, in turn, would justify defendant’s use of “deadly physical force” in this incident (742). When defense counsel claimed that the test was “what knowledge this defendant had of assaultive behavior by the [p]eople so that he had reason to be fearful” (742), the court pointed out: That’s not the way [defendant] testified yesterday. Indeed, yesterday what he testified to was an unintentional act. The justification scheme is designed for situations where a person makes a purposeful conscious, intentional decision and acknowledges it rather than a scattered shot, I will throw out stuff. What he said yesterday, when this would have been relevant, rather than this morning after a hiatus of about 18 hours, what he said yesterday was Jason lunged at me and instinctively without thought and certainly with no intention of inflicting injury, I swung the mallet. One, I’m not persuaded really that it fits into justification. Maybe I’ll give you the charge, anyway, but he cannot possibly, in my view, bootstrap his marginal claim of self- defense based on the testimony yesterday with some afterthought presented today about reputation based on a sister throwing a glass in the bar as justification for hitting the complaining witness in the head with a mallet on the street months later. (742-743). In addition, defense counsel sought to ask defendant “[whether] Jason or any siblings were involved or what [defendant] observed” regarding the incident in which Jason testified that he came to the assistance of Jennifer during a fight. The court denied defendant’s application (743). Counsel also asked if he could question defendant as to whether “other siblings” got “involved” in Jennifer’s “bar/glass D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 29 March 30, 2015 throwing” incident. The court stated, “No, because by the very definition of the question, the fight is not involving deadly physical force” (744). After the sidebar conference, defense counsel again elicited from defendant that he saw Jennifer throw a shot glass in the club (744). When counsel asked defendant if anyone else at that time “use[d] any objects or weapons,” defendant responded that, “[o]nce [Jennifer] threw the shot glass at the girl,” Edwin “jumped in” because the girl “had her boyfriend with her.” The court asked if anyone else used or had “a weapon,” and defendant replied, “I didn’t see anybody else have a weapon” (745). At the conclusion of the People’s cross-examination of defendant, a sidebar conference was held during which defense counsel cited People v. Miller, 39 N.Y.2d 543 (1976) (782) in support of his argument that the “personal knowledge of someone claiming to act in self-defense of someone’s prior violent behavior was admissible and shows the state of mind of one who claims to have acted in self-defense” (782). Defendant further argued that Miller did not hold that the victim’s prior violent behavior had to involve the use of deadly physical force in order to justify the defendant’s use of deadly physical force against the victim in the case at hand (782). The court responded that, regardless of Miller, “[t]he core law still is you can respond to physical force by physical force, you can respond to [imm]inent use, the fear of [imm]inent use of deadly force with deadly force” (783). However, the court reiterated, “much of that [was] missing” here, where defendant made it “clear” during his testimony regarding “what the circumstances were when he swung the mallet” at Jason’s head (783). B. A defendant has a constitutional right to present a defense. Crane v. Kentucky, 476 U.S. 683, 689-90 (1986). This encompasses the right to cross-examine witnesses, Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986), and includes the right to present relevant evidence. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). However, a trial judge has the discretion to exclude evidence whose relevance is marginal, or rests on speculation. See Van Arsdall, 475 U.S. at 678-679; Crane, 476 U.S. at 689, 690. It is important for trial courts to “rivet the jury’s attention on the real issues at trial without undue diversion to collateral matters having little or no bearing on the guilt or innocence of the defendant.” People v. Aska, 91 N.Y.2d 979, 981 (1998), quoting Miller, 39 N.Y.2d at 551; see also People v. Hudy, 73 N.Y.2d 40, 56 (1988). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 30 March 30, 2015 The trial court has “wide latitude” to impose “reasonable limits” on cross- examination. Van Arsdall, 475 U.S. at 679; see also People v. Moore, 6 A.D.3d 173, 174 (1st Dept. 2004). There is no violation of the right to confront and cross- examine so long as defense counsel is given sufficient latitude to test adequately the credibility of the People’s witnesses. See People v. Goris, 305 A.D.2d 178, 179 (1st Dept. 2003). The scope of allowable cross-examination is committed to the sound discretion of the trial court, and thus an appellate court should defer to that court’s determination absent a clear abuse of discretion. See Aska, 91 N.Y.2d at 981; People v. Melcherts, 225 A.D.2d 357, 357 (1st Dept. 1996); People v. Blakeney, 219 A.D.2d 10, 14 (1st Dept. 1996), aff’d, 88 N.Y.2d 1011 (1996). In addition, in a prosecution for assault, a defendant asserting a justification defense can introduce evidence concerning his state of mind at the time of the incident. See Miller, 39 N.Y.2d at 551-552. That evidence may include the defendant’s knowledge of his victim’s prior violent acts, provided that “the acts sought to be proved relate reasonably, in time and quality, to the defense raised by the defendant.” Miller, 39 N.Y.2d at 552; People v. Douglas, 29 A.D.3d 47, 51 (1st Dept. 1996). But, within its discretion, the trial court “may place limitations on the extent that such matters may be proved,” so that the principal issues are not “lost in an endless maze of collateral matters.” Miller, 39 N.Y.2d at 552; see Aska, 91 N.Y.2d at 981-82; People v. Ross, 55 N.Y.2d 643, 645 (1981). Judged by these principles, the Appellate Division was absolutely correct in determining that the trial court had properly exercised its discretion in limiting the extent to which defendant was allowed to elicit evidence concerning the Justinianos’ prior violent acts. Preliminarily, as the Appellate Division held (Mendez, 116 A.D.3d at 514), defendant’s appellate complaint about the trial court’s evidentiary determinations is only partially preserved. Defendant never argued before the trial court, as he did for the first time before the Appellate Division and once again before this Court, that the excluded evidence concerning the Justinianos’ prior violent acts was admissible to impeach their credibility (Defendant’s 500.11 Letter at 8). Rather, defendant only argued that the evidence was relevant to his justification defense. And, to the extent defendant is renewing the claim he made for the first time to the Appellate Division -- that the trial court’s exclusion of evidence about the Justinianos’ prior violent acts impaired his constitutional right to present a complete justification defense (Defendant’s 500.11 Letter at 8) that claim is also unpreserved. See People v. Lane, 7 N.Y.3d 888, 889 (2006); People v. Angelo, 88 N.Y.2d 217 (1996). In any event, as the Appellate Division correctly found (Mendez, 116 A.D.3d at 513), the trial court D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 31 March 30, 2015 properly exercised its discretion regarding the extent to which the Justinianos’ prior acts of violence could be introduced in evidence.15 At the outset, as the Appellate Division aptly found (id.), the trial court permitted the jury to hear more than sufficient evidence about the Justinianos’ prior violent acts to give the jury a clear picture in assessing defendant’s justification claim and the Justinianos’ credibility. Defendant testified that he observed Jennifer throw a shot glass at a girl inside the bar area at Escuelita’s, and that Jason and Edwin were there at the time. Defendant also testified that, after Jennifer threw the shot glass, Edwin “jumped in” because the girl “had her boyfriend with her” (Mendez: 741, 744- 745). Moreover, defendant was permitted to elicit from Jennifer and Jason that Jennifer had been involved in one or two fights in Escuelita’s (Jason Justiniano: 164; Jennifer Justiniano: 413). In particular, Jennifer testified that one fight occurred when a group of guys approached her to dance. After she told them that she was “gay” and would not want to “bump and grind on a guy,” one of the men grabbed her and put her up against a wall. Jason saw what had happened and “the fight started” (Jennifer Justiniano: 414). Jason testified that Jennifer “wasn’t really fighting,” but rather, he “was doing the fighting for her” (Jason Justiniano: 165). As a result of that altercation, Jason testified that he received medical attention (Jason Justiniano: 197). Furthermore, defense counsel was permitted to ask Jason and Jennifer whether they or their other siblings had ever been banned from Escuelita’s for fighting, to which they both replied that none of them had been banned (Jason Justiniano: 173; Jennifer Justiniano: 414). In addition, the jury was presented with evidence that Jennifer had told defendant’s attorney before the trial that she “liked to fight,” although she also explained that she meant that, if a fight “comes to” her, she “will defend [her]self” (Jennifer Justiniano: 432-433). Plainly, then, the Appellate Division was correct in finding that defendant received a sufficient opportunity to demonstrate his knowledge of prior violent acts that had been committed by the Justiniano siblings. Mendez, 116 A.D.3d at 513. Notably, defendant’s offers of proof were simply inadequate for the trial court to allow defendant to elicit evidence regarding the Justinianos’ prior violent acts beyond what had already been admitted in evidence. Critically, defendant never specified at trial, nor does he on appeal, what specific prior violent acts on the part of 15 To the extent defendant claims that the arguments he raised on this issue in his post-trial motion to set aside the verdict pursuant to CPL § 330.30(1) preserved his current claims for appellate review (Defendant’s 500.11 Letter at 6), he is wrong. It is well-settled that a motion to set aside the verdict “is not, by itself, ordinarily sufficient to preserve ‘a question of law.’” See People v. Padro, 75 N.Y.2d 820 [1990]). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 32 March 30, 2015 Jennifer, Jason or Edwin he should have been allowed to elicit during their testimony or his own, beyond what was already introduced into evidence. Instead, at every turn, as shown below, when the court asked defense counsel to explain what specifically he was seeking to elicit from Jennifer, Jason and defendant, counsel would revert back to the general notion that the Justinianos had participated in fights inside Escuelita’s, and that because he was “intending to prove self-defense,” their reputation for “assaultive behavior” was relevant (168-171, 742, 782). For example, the court pointed out that generally asking Jason “what fights he has been in,” especially considering that Jason had never been arrested for any prior fights, left open the question, “how do we know he wasn’t defending himself” or that he was “not a knight in shining armor” (170-171). Since defendant did not offer any specific incidents of Jason’s prior violent acts that he had knowledge of and that he wanted the jury to consider -- beyond the incident in which Jason admitted to fighting in the course of helping Jennifer when a man at the club placed her against a wall -- it was impossible for the court to determine not only what other prior act of violence Jason may have been involved in, but how it would have any bearing on his credibility or defendant’s use of deadly physical force in this case. Notwithstanding this shortcoming, the court invited defense counsel to specify a prior fight involving Jason that he had knowledge of and that should be admitted in evidence; however, counsel failed to do so, demonstrating to the court that counsel was simply engaging in a fishing expedition in an attempt to have the jury hear about any prior bad acts that may have been committed by Jason (171). Furthermore, when the court asked defense counsel what he was “hoping to elicit” from defendant with regard to his observation of Jennifer throwing a shot glass at the bar and why he thought it had a “place in the trial,” counsel again did not offer any specific facts or explanation. On the contrary, counsel merely stated that he wished to “explore” if this was the same fight that Jason had testified that he had come to the assistance of Jennifer, with counsel acknowledging that he did not “know” if it was the “same fight or not” (743). Thus, it was evident that defense counsel was engaging in another fishing expedition, and the court therefore had every right to curtail that type of examination. Consequently, given defendant’s failure to make an adequate offer of proof, the trial court appropriately exercised its discretion in not allowing defendant to elicit any additional testimony regarding the Jusitinianos’ prior violent acts beyond what was admitted in evidence. See People v. Santiago, 211 A.D.2d 734 (2d Dept. 1995) (“Upon our review of the record, we find that the defendant’s offers of proof were inadequate for an appropriate determination of whether the specific acts of violence previously committed by the victim were reasonably related to the shooting of the victim by the defendant”); People v. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 33 March 30, 2015 Luchese, 127 A.D.2d 699 (2d Dept. 1987) (the offer of proof, as reflected in the record, fails to establish that they were of such quality as to be relevant to the defense raised by the defendant); People v. Cotto, 159 A.D.2d 385 (1st Dept. 1986) (defendant “sought unsuccessfully to elicit prior violent acts allegedly committed by the victim. Defendant, however failed to clearly and unambiguously make known her offer of proof to demonstrate the relevance of the evidence”). Contrary to defendant’s assertion (Defendant’s 500.11 Letter at 6-7), the trial court also properly precluded any additional testimony concerning the Justinianos’ prior violent acts since they were not “related” in “quality” to the assault committed by defendant in this case. See Miller, 39 N.Y.2d at 552. Here, defendant was convicted of using a dangerous instrument, namely, a metal pronged meat tenderizing mallet, to cause physical injury to Jason Justiniano by smashing him on his head with it. Thus, as the court charged the jury, defendant’s self-defense claim rested upon his “reasonable” belief that his use of “deadly physical force” was necessary to defend himself against “the use or imminent use of deadly physical force” (Jury Charge: 878- 881). Considering that Miller makes plain that the “quality” of the victim’s prior violent act must be reasonably related to the defense raised in the crime for which the defendant is charged, Miller, 39 N.Y.2d at 551, it was not enough for defendant to merely show that he knew that the Justiniano siblings had been involved in fights in the past. Rather, their prior conduct must have been of such a nature or quality that it caused defendant to reasonably believe that he needed to use deadly physical force against Jason in this case. Given that context, and, as noted, defendant’s failure to proffer any specific details about prior fights in which the Justinianos had been involved that he wanted to elicit, it was entirely reasonable for the court to draw the line at whether the Justiniano siblings had used any weapons in previous fights, since that would no doubt indicate that defendant might have had a reasonable basis to believe that he needed to use a dangerous instrument to defend himself in this case. Twice, the court directly asked and permitted questioning of defendant regarding whether any of the Justiniano siblings had used weapons in prior altercations, which would give defendant a reason to believe he needed a weapon to defend himself against them in this case (741, 745). Furthermore, the court correctly limited questioning about Jason and Edwin’s involvement in the fight where Jennifer threw a shot glass. After all, a person’s participation in a mere bar fight, without the use of weapons, could not lead anyone to reasonably believe that he would need to use deadly physical force in a subsequent confrontation with that person. In the end, the court correctly focused the prior violent acts to the issue at hand, namely, whether the Justinianos had used weapons in any prior altercations, which would make defendant reasonably believe that he needed D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 34 March 30, 2015 to use a dangerous instrument, such as a meat tenderizer, to repel their attack in this case. See People v. Tumerman, 133 A.D.2d 714 (2d Dept. 1987) (“Nor did the trial court err in precluding the defendant from offering evidence as to three instances of the victim’s violent behavior of which the defendant had knowledge (while permitting the admission of evidence of other instances of the victim's violent behavior) since these three instances were not reasonably related in time and quality to the particular defense advanced by the defendant at trial”); see also People v. Parks, 85 A.D.3d 557 (1st Dept. 2011) (“However, here the People conceded that the complainant may have been the initial aggressor and argued that defendant was unjustified in the amount of force he used. Therefore, the evidence of a possible threat had little or no probative value”). The point of the court’s ruling was that the Justinianos’ prior violent acts of which defendant had knowledge had to implicate defendant’s specific justification defense, not merely any justification defense. As the Court held in Miller held, the trial court, “upon an offer of proof” may “decline” to admit evidence of a victim’s prior acts of violence if they do not “relate reasonably, in time and quality” to the “defense raised by the defendant” (emphasis supplied). See Miller 39 N.Y.2d at 552. In other words, the evidence is only relevant if it relates to the specific defense put forth by defendant. Indeed, the facts of Miller further illustrate this point. In Miller, before the defendant shot and killed his sister while she was drunk, they had a physical fight regarding whether their mother had stolen his sister’s paycheck, causing his sister to threaten defendant that she would kill him. A short time later, defendant’s sister slashed his face with a “butcher’s knife.” When defendant fled to another area of the house, his sister remarked that she “should have cut his throat” and that she “was going to kill him.” As the sister approached defendant, he took a gun and fatally shot her. Id. at 547-548. In raising a justification claim, defendant sought to introduce evidence that defendant was aware that his sister had become “extremely violent when under the influence of alcohol and or drugs,” that she had once bit her mother’s fingernail so “severely” that it had to be removed, that she pushed her mother down a flight of stairs, and that she had thrown objects at her mother. Id. at 548. In Miller, all of the evidence defendant sought to introduce further demonstrated his state of mind that his life was in danger at the time he shot his sister and that he needed to use deadly force to repel her attack. The proposed evidence about defendant’s sister’s violence toward their mother was all the more compelling given that their mother was the “source of her anger” on the day of the crime. Id. at 553-554. Here, by contrast, simply because Jason or Edwin Justiniano had previously participated in a barroom fight would not lead any reasonable person to believe that his life was in danger in a subsequent fight with them. Thus, the court’s decision to permit defendant to testify that Jennifer had thrown a shot glass D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 35 March 30, 2015 during a fight and only permit defendant to testify if he knew if the other Justiniano siblings used a weapon was faithful to Miller’s holding and a proper exercise of discretion.16 Finally, the Appellate Division correctly concluded that, to the extent any of the trial court’s restrictions on evidence pertaining to the Justinianos’ prior violent acts could be viewed as erroneous, they were harmless. Mendez, 116 A.D.3d at 514. First and foremost, to the extent that defendant failed to make specific offers of proof, it is difficult to determine whether any of the excluded testimony would have been beneficial to him. Moreover, to the extent that the record does permit review, defendant was plainly not harmed by the court’s evidentiary rulings. As previously noted, defendant was permitted to testify that he observed Jennifer throw a shot glass at a bar in Escuelita’s, and that Jason and Edwin were there at the time. In addition, defendant testified that Edwin “jumped in” as the fight that ensued. So, too, the jury heard evidence that Jennifer told defendant’s lawyer that she liked to fight, that she had gotten into fights inside Escuelita’s, and that Jason had protected her in the past by fighting a man who had restrained her. Thus, the jury had more than sufficient evidence to consider regarding the Justinianos’ prior violent acts so as to assess their credibility, as well as defendant’s justification claim. Any additional information about prior fights in which the Justinianos may have been involved would have been superfluous and could not have possibly influenced the verdict.17 Moreover, as discussed in Point I of the People’s Appellate Division brief, the evidence convicting defendant of second-degree assault was simply overwhelming. There is no significant probability that the jury would have acquitted defendant if additional testimony about the Justinianos’ prior violent acts had been allowed in evidence. See People v. Ross, 197 A.D.2d 713, 714 (2nd Dept. 1993) (“the evidence presented by the defendant 16 In arguing that the evidence was “sufficiently related in time and quality” to what confronted defendant at the time of the incident, defendant claims that one of these prior violent acts “arose out of advances that men made on [Jennifer]” (Defendant’s 500.11 Letter at 7). But, of course, the jury heard testimony from Jennifer that a man made an unwelcome advance on her at Escuelita’s and that Jason fought that person. Thus, defendant still does not specify what else about that incident was relevant and would have helped the jury in assessing defendant’s justification defense. 17 Defendant’s attempt to read into the jury’s deliberations is without merit (Defendant’s 500.11 Letter at 8). Obviously, it is impossible to know why the jury acquitted defendant of first- degree assault for his attack on Jason Justiniano or second-degree assault for his attack on Edwin Justiniano. What is clear, however, is that the evidence, as shown in Point I of the People’s Appellate Division brief, overwhelmingly supported the jury’s verdict as to defendant’s guilt of second-degree assault for his attack on Jason Justiniano. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 36 March 30, 2015 with respect to his claim of self-defense was so tenuous that there is no significant probability that the jury would have acquitted the defendant if the testimony [of the victim’s prior acts of violence] had been allowed, and any error in excluding it was harmless”). In short, the Appellate Division properly rejected defendant’s claim that the trial court erred by excluding certain prior violent acts of the Justiniano siblings. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K Hon. Jonathan Lippman 37 March 30, 2015 CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: JARED WOLKOWITZ Assistant District Attorney GRACE VEE JARED WOLKOWITZ Assistant District Attorneys Of Counsel March 30, 2015