The People, Respondent,v.Edwin Mendez, Appellant.

Brief

N.Y.October 15, 2015

C. AUSTIN GINNINGS CAginnings@fchs.com 212-218-2366 www.fitzpatrickcella.com NEW YORK 1290 Avenue of the Americas New York, NY 10104-3800 T 212-218-2100 F 212-218-2200 February 13, 2015 VIA FEDEX Hon. Andrew W. Klein Clerk of the Court Court of Appeals of the State of New York 20 Eagle Street Albany, New York 12207 Re: People v. Mendez (Edwin), APL-2014-00320 (Ind. No. 351/11 (New York County)) Dear Mr. Klein: I submit this letter in response to the Court’s request of January 23, 2015, for arguments in support of defendant-appellant Edwin Mendez’s position on the merits of the above case, pursuant to section 500.11 of the Court’s Rules of Practice. Mr. Mendez has no objection to summary review because the trial court’s failure to respond on the record to three substantive jury notes plainly requires reversal under this Court’s decision in People v. Silva, 24 N.Y.3d 294 (2014). I. Background In December 2011, Mr. Mendez was tried for counts of assault stemming from an altercation with four individuals (the Justiniano siblings) on January 23, 2011. See Indictment No. 351/11; Tr. 882:18-893:21, 926:4-17.1 The Justiniano siblings testified that Mr. Mendez was the initial aggressor during a late-night brawl and ultimately struck one of the siblings (Jason Justiniano) with a meat tenderizer; in contrast, Mr. Mendez testified that he was defending himself from the Justinianos. See Br. at 5-7, 10-13. Mr. Mendez raised the defense of justification at trial and sought to introduce evidence in support of that defense, through cross- examination of the prosecution’s witnesses, as well as through his own testimony and that of an observer. See id. at 4-8. Specifically, Mr. Mendez was familiar with the Justiniano siblings through his employment at Club Escuelita, an establishment which was frequented by the 1 All citations to “Tr.” refer to the transcript of Mr. Mendez’s trial, held on December 7-19, 2011. All citations to “Br.” and “Resp. Br.” refer to Mr. Mendez’s and Respondent’s briefs before the Appellate Division, respectively. Hon. Andrew W. Klein February 13, 2015 Page 2 Justiniano siblings, and which the Justiniano siblings visited for several hours immediately before their altercation with Mr. Mendez. E.g., Tr. 413:4-414:19, 705:19-706:6, 707:8-709:11.2 Mr. Mendez’s trial spanned six days and included testimony from fifteen different witnesses. See Br. at 11. The prosecution’s evidence consisted primarily of the testimony of the four Justiniano siblings, as well as other witnesses connected to the incident (including several police officers, nightclub staff, and a food vendor). See id. Two 911 calls were also introduced into evidence, one by the prosecution, and one by Mr. Mendez. Tr. 568:8-569:16; 796:16-798:2. The prosecution also introduced into evidence several recordings of telephone calls made by Mr. Mendez during his pre-trial incarceration. See Tr. 618:5-625-20. While the prosecution primarily offered these calls into evidence because they contained statements in which Mr. Mendez attempted to have others offer money to the Justinianos in exchange for foregoing prosecution of Mr. Mendez, some of the calls also contained conversations that supported Mr. Mendez’s justification defense. See Tr. 444:20-450:10. Because portions of these recorded conversations were in Spanish, the prosecution prepared transcripts of the recordings which included translations of the Spanish portions. See Tr. 621:9-622:20. These transcripts were provided to the jury while the recordings were played during trial, but they were not introduced into evidence. During deliberations, the jury sent ten separate notes to the court. Many of these notes requested items admitted into evidence during the trial (e.g., photographic exhibits introduced by the prosecution) and readbacks of witnesses’ testimony. See Court Exhibits 4-8. The jury also sent a note asking to be re-instructed on justification. See Court Exhibit 9. The court informed counsel of the first six notes, conferred with counsel regarding some of those notes (including those requesting readbacks of testimony), and responded to the jury regarding those notes on the record in open court.3 Tr. 911:17-925:13. However, the record contains absolutely no evidence that the trial court responded to the jury’s last three notes (Court Exhibits 10-12) before delivering its verdict.4 Those notes stated the following (all errors in original):  Court Exhibit 10: “Phone transcript we were given in court. (Spanish translations)” 2 Additional evidence relevant to the trial court’s failure to allow Mr. Mendez to present a complete justification defense, including details about the altercation and the impeachment of witnesses, is discussed in Section III infra. 3 Although the trial court apparently sent exhibits to the jury room in response to these notes without obtaining consent from counsel on the record, any error is this regard is dwarfed by the trial court’s failure to respond to the substantive requests for information in Court Exhibits 10-12. 4 The tenth and final note (Court Exhibit 13) indicated that the jury had reached a verdict. Hon. Andrew W. Klein February 13, 2015 Page 3  Court Exhibit 11: “WERE there 911 calls related to incident that we did not here. Can we hear them or have them read.”5  Court Exhibit 12: “the transcripts we were given when we were listening to tapes on conversations while Mr. E. Mendez was incarcerated. mainly what Edwin said he did to Jason and” The record demonstrates that Court Exhibits 10-12 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. Tr. 925:12-20. However, the record contains absolutely no indication of if or how the trial court responded to these three notes before the jury delivered its verdict. On direct appeal, Mr. Mendez argued that the trial court’s failure to make any kind of record of if or how it responded to Court Exhibits 10-12 is contrary to Criminal Procedure Law § 310.30 and this Court’s decision in People v. O’Rama, 78 N.Y.2d 270 (1991). However, the First Department (following its own precedent and without the benefit of this Court’s decision in Silva) concluded that the trial court was not required to follow the procedures mandated by Criminal Procedure Law § 310.30 because these notes were “ministerial.” See People v. Mendez, 116 A.D.3d 513, 513 (1st Dep’t 2014) (internal citations omitted). II. Mr. Mendez’s Conviction Must Be Reversed Because, Under Silva, The Trial Court’s Failure to Respond to Court Exhibits 10-12 Was a Mode of Proceedings Error. Criminal Procedure Law § 310.30 and O’Rama require that, when a substantive jury note is received by the trial court, it must be marked as a court exhibit and read into the record in the presence of counsel, and the court should solicit counsel’s input as to appropriate responses before the trial court reconvenes the jury in the courtroom, reads back the note, and provides a meaningful response to the jury. Crim. Proc. Law § 310.30; O’Rama, 78 N.Y.2d at 277-78. This Court has held that jury communications are only non-substantive when they are “wholly unrelated to the substantive legal or factual issues of the trial.” People v. Hameed, 88 N.Y.2d 232, 241 (1996); see also People v. Ochoa, 14 N.Y.3d 180, 188 (2010) (finding note ministerial when “unrelated to the substance of the verdict”). Despite this guiding precedent, the Appellate Division has struggled in determining when jury requests are related to the substantive legal or factual issues of the trial, as opposed to mere ministerial inquiries. For example, the First Department found (in the case underpinning its decision in this case) that a request for an item not admitted into evidence was a ministerial 5 Defense counsel had asked that additional 911 calls be introduced at trial. Tr. 799:24-800:1. The trial court deferred decision at the time (Tr. 800:5-7), but the record contains no further discussion of the matter. Hon. Andrew W. Klein February 13, 2015 Page 4 request. See People v. Ziegler, 78 A.D.3d 545, 546 (1st Dep’t 2010). Not only has no other department reached that same conclusion, but indeed at least one department reached a contrary one. See People v. Surpris, 83 A.D.3d 742, 744 (2d Dep’t 2011) (finding jury note requesting “an item that was not admitted into evidence” to be substantive); cf. People v. Cruz, 14 N.Y.3d 814 (2010). Similarly, the Second and Third Departments reached opposite conclusions about whether a request for readback of a jury instruction was a substantive or ministerial request. Compare People v. Mack, 117 A.D.3d 1450, 1451 (4th Dep’t 2014) (finding request for “readback of the instruction on reasonable doubt” to be substantive), with People v. Gerrara, 88 A.D.3d 811, 812 (2d Dep’t 2011) (finding “read-backs of the trial court’s jury charge” to be ministerial). However, decisions from the First Department and other departments that have found notes of this nature to not require the procedures mandated by O’Rama have been resoundingly rejected by this Court in recent years. See, e.g., People v. Walston, 23 N.Y.3d 986, 990 (2014) (reversing conviction for trial court’s failure to respond on the record to note requesting re- instruction on manslaughter and second-degree murder); Cruz, 14 N.Y.3d at 816 (reversing conviction because of “significant, unexplained irregularity” relating to trial court’s failure to respond to note requesting item initially admitted into evidence but later excluded without jury’s knowledge); People v. Tabb, 13 N.Y.3d 852, 852 (2009) (reversing conviction for trial court’s failure to respond on the record to note requesting re-instruction on justification). Indeed, 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. In Silva, this Court considered claims involving trial courts’ wholesale failure to respond on the record to jury notes requesting re-instruction on the law and a readback of testimony.6 See 24 N.Y.3d at 297. In both instances, the record contained no indication that the trial court ever informed counsel of the notes or responded to the jury’s inquiries. See id. This Court reversed both convictions, finding the notes to be substantive and stating that “[t]he record … must indicate compliance with adequate procedures under O’Rama because reviewing courts cannot assume that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled.” Id. at 299-300 (internal quotation and citation omitted). Notably, this Court firmly rejected the idea that such notes could be considered ministerial; not even the lone dissenting-in- part judge considered the notes ministerial. See id. at 301-303 (Smith, J., concurring in part and dissenting in part). There can be little doubt as to what the First Department would have concluded about the notes at issue in Silva. The First Department affirmed the conviction in Mr. Silva’s case because there was no record of how the court responded to the request for re-instruction, see People v. 6 One of the notes also contained a request for a wire transcript. It is unclear from the decision whether this was an item admitted into evidence, or whether counsel had consented to the item being sent back to the jurors without reconvening counsel and the jury in the courtroom. Hon. Andrew W. Klein February 13, 2015 Page 5 Silva, 99 A.D.3d 522, 523 (1st Dep’t 2012), and the First Department would have found the request for a readback of testimony in Mr. Hanson’s case7 to be ministerial under its own precedent, see, e.g., People v. Jackson, 105 A.D.3d 607, 608 (1st Dep’t 2013). Just as it erred in those cases, here the First Department erred in finding Court Exhibits 10-12 to be ministerial. Under the proper standard articulated by this Court, Court Exhibits 10-12 in this case are substantive inquiries. Court Exhibits 10 and 12 requested transcripts of recorded phone calls that were played by the prosecution to impugn Mr. Mendez’s credibility at trial, but that also contained statements about the incident which tended to support Mr. Mendez’s testimony. Moreover, Court Exhibit 12 represents a second request for the transcripts, implying not only that the trial court never responded to Court Exhibit 10, but also that the jury remained interested in reviewing the content of the phone calls. Also, because Court Exhibit 12 pointed the trial court to specific portions of the transcripts the jury was interested in reviewing (“mainly what [Mr. Mendez] said he did to [Jason Justiniano]”), input from counsel would have been critical in crafting a response to the jury’s inquiry.8 The content of these calls (including events that occurred before and after Mr. Mendez’s arrest) were discussed in the examination of many witnesses at trial. Moreover, while the parts of the calls detailing Mr. Mendez’s attempts to convince the complainants to forego prosecution were not favorable, Court Exhibit 12 instead directed the trial court to Mr. Mendez’s description of the altercation. These portions of the calls supported Mr. Mendez’s justification defense, and counsel could have provided input in directing the court to focus, for example, on these aspects of the phone calls in its response. Thus, these requests to review material evidence clearly related “to the substantive legal or factual issues of the trial.” Hameed, 88 N.Y.2d at 241. Similarly, Court Exhibit 11 asked about the existence of additional 911 calls, demonstrating that the jury was interested in additional accounts of the incident. Also, because it can be reasonably inferred from Court Exhibit 11 that the jury may have been speculating about matters not in evidence, the trial court should have solicited input from counsel as to whether a cautionary instruction was necessary. Because the circumstances of Mr. Mendez’s altercation 7 Silva contained decisions in the companion cases of Mr. Silva and Mr. Hanson. 8 Respondent speculated below that the trial court may have responded to the jury off the record by telling the jurors the requested items were not in evidence or instead may have brought the jurors back into the courtroom to hear the phone call recordings. See, e.g., Resp. Br. at 60-62. Not only is Respondent’s argument speculative and without any support in the record, but Silva made clear that Respondent’s argument must fail because the trial court did not fulfill its core responsibilities under O’Rama. See Silva, 24 N.Y.3d at 299-300 (“[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 qualifies as a mode of proceedings error.”). Hon. Andrew W. Klein February 13, 2015 Page 6 with the Justiniano siblings were highly contested at trial, a request for additional accounts of those events is also clearly related “to the substantive legal or factual issues of the trial.” Id. Because Court Exhibits 10-12 are substantive inquiries, reversal is required. Indeed, reversal is required because nothing in the record indicates that the trial court ever informed counsel of any of these notes, sought input from counsel concerning its response to them, read the notes in open court, or provided any response (let alone a meaningful one), thereby committing multiple mode of proceedings errors under O’Rama. Assuming that any one of Court Exhibits 10-12 is substantive, even Respondent has never contended that Mr. Mendez’s conviction could be affirmed. Instead, Respondent’s only contention before the First Department was that a reconstruction hearing was required if any of the notes were found to be substantive. See Resp. Br. at 66-67. However, this Court disposed of that argument in Silva, in which it found mode of proceedings errors requiring reversal in both cases. III. The Trial Court Improperly Precluded Mr. Mendez from Introducing Evidence of the Justinianos’ Prior Violent Acts. A criminal defendant asserting a justification defense is allowed to introduce evidence of the victim’s prior acts of violence, provided that (1) the defendant had knowledge of the acts; and (2) the acts are reasonably related “in time and quality[] to the defense raised by the defendant.” People v. Miller, 39 N.Y.2d 543, 552 (1976); see also People v. Wesley, 76 N.Y.2d 555, 559 (1990) (noting that, in considering a justification defense, the jury much consider the circumstances facing the defendant, “includ[ing] relevant knowledge that the defendant may have had about the victim … and any prior experience that the defendant may have had” which could provide a reasonable basis to believe that the victim’s intent was to injure the defendant). In this case, Mr. Mendez clearly alleged that he personally knew of prior violent acts that the Justinianos had committed during his employment at Club Escuelita, an establishment frequented by the Justiniano siblings. This knowledge was corroborated by defense counsel’s conversations with Jennifer and Edwin Justiniano, in which they claimed that they “loved to fight,” as well as the trial admissions of Jennifer and Jason Justiniano to prior fights at Club Escuelita. Tr. 164:14-165:1, 168:3-4, 414:7-20. Mr. Mendez’s counsel proffered Mr. Mendez’s knowledge at several points during the trial, see Tr. 164:10-173:11, 413:17-414:20, 740:12- 744:4, 782:12-783:17, and in the post-trial motion to set aside the verdict, and neither the prosecution nor the trial judge legitimately questioned Mr. Mendez’s knowledge of these acts.9 Moreover, Mr. Mendez testified that he knew of the Justinianos from this prior employment, and 9 During the first colloquy related to defense counsel’s attempts to elicit this evidence, the trial judge (long before Mr. Mendez testified) stated to defense counsel, “I don’t trust your client.” Tr. 169:2. Needless to say, the trial court’s apparent gut instinct was not a legitimate basis for precluding questioning. Hon. Andrew W. Klein February 13, 2015 Page 7 at least two of the Justinianos confirmed that they were familiar with Mr. Mendez. Tr. 707:8- 709:11; see also Tr. 415:2-12, 455:15-20. In addition, the Justinianos’ prior acts were sufficiently related in time and quality to the situation facing Mr. Mendez on January 23, 2011. First, the prior acts took place during Mr. Mendez’s employment at Club Escuelita only months before he was attacked by the Justinianos. Tr. 705:19-707:22; see also, e.g., 415:7-9, 488:22-24; People v. Rodwell, 100 A.D.2d 772, 773 (1st Dep’t 1984) (finding statement made “some months” before shooting admissible under Miller). Also, by Jennifer Justiniano’s own admission, at least one of these prior violent acts arose out of advances that men made on her, Tr. 414:7-19, which was precisely what the Justinianos alleged led to the fight on January 23, 2011. The limited testimony that Mr. Mendez was able to elicit during cross-examination of the Justinianos was insufficient to allow him to present a complete defense. The court did not allow any cross-examination of Jason Justiniano concerning the nature of the prior fights in which he had been involved at Club Escuelita. Tr. 170:11-171:11. Similarly, the trial court limited Jennifer Justiniano’s testimony to a self-serving statement that one particular fight began because of an unwelcome advance, without any information about the conduct of the fight itself. See Tr. 414:7-20. Most importantly, the court prevented Mr. Mendez from providing any details concerning his personal knowledge of the Justinianos’ assaultive history—evidence that was highly relevant to Mr. Mendez’s mental state. Tr. 740:12-744:4. Miller and its progeny permit a criminal defendant to introduce such evidence through the testimony of witnesses other than defendant himself/herself, and the trial court’s allowance of limited, sanitized testimony about the victim’s prior violent acts prevented Mr. Mendez from introducing a complete defense. See, e.g., People v. Douglas, 29 A.D.3d 47, 48-51 (1st Dep’t 2006) (reversing convictions for attempted murder and assault in the first degree when defendant was precluded from introducing, through his own testimony and that of a witness, the victim’s prior violent acts and was instead only allowed to testify that the victim had “‘injured people’ on prior occasions”). The trial court’s error on this issue was far from harmless. An error is harmless only when there is “overwhelming proof of the defendant’s guilt” and no significant probability that the jury would have acquitted the defendant were it not for the error. See, e.g., People v. Crimmins, 36 N.Y.2d 230, 242 (1975). Lower courts have found errors in the exclusion of evidence to be harmless when, for example, the excluded evidence is cumulative of other admitted evidence, People v. Diallo, 297 A.D.2d 247, 248 (1st Dep’t 2002), “had little or no bearing on the principal issue[s] in the case,” People v. Parks, 85 A.D.3d 557, 558 (1st Dep’t 2011), or when the defendant was provided “‘a meaningful opportunity to present a complete defense,’” Douglas, 29 A.D.3d at 50 (citation omitted). On the other hand, if there are “close[] … factual questions with respect to the defense of justification … the error cannot be deemed harmless.” People v. Owens, 158 A.D.2d 478, 478 (2d Dep’t 1990); see also People v. Raosto, 50 A.D.3d 508, 509-10 (1st Dep’t 2008) (finding error not harmless when “[t]he evidence was … far from overwhelming” and the “case presented a close question of credibility to be resolved by the jury”). Hon. Andrew W. Klein February 13, 2015 Page 8 Here, the evidence was far from overwhelming. Instead, there were close factual questions with respect to the events of January 23, 2011, as well as credibility determinations for the jury to make. While the defense’s evidence was called into question at various points (largely because of the recorded phone calls and the prior criminal records of both Mr. Mendez and another defense witness, see Tr. 666:22-680:2, 748:16-749:3), the prosecution’s witnesses told widely inconsistent stories. For example, as discussed in detail in Mr. Mendez’s Appellate Division brief, the Justinianos contradicted each other’s testimony on even the most essential details of the fight. See Br. at pp. 11-13. The Justiniano siblings also repeatedly contradicted their grand jury testimony. See, e.g., Tr. 251:18-253:1, 256:3-257:1, 492:20-493:13, 498:2-18. Moreover, their testimony was repeatedly contradicted by the prosecution’s other witnesses. For example, while Jason Justiniano claimed to not feel intoxicated during the altercation with Mr. Mendez, Tr. 112:21-113:1, his treating physician at the hospital that morning testified that Jason Justiniano’s blood-alcohol content upon arriving at the hospital was two and a half times the legal limit, Tr. 553:21-554:16. The jury’s deliberation process and verdict also reflect this. The jury (as discussed in Section II supra) made multiple requests for evidence and testimony and for a re-reading of the charges, and the jury ultimately acquitted Mr. Mendez of the charge related to Edwin Justiniano and only convicted him of the least serious charge related to Jason Justiniano. Tr. 926:1-17. Thus, there were close factual questions in this case for the jury to resolve, and the error in precluding this testimony was not harmless. Moreover, the excluded evidence concerning the Justinianos’ prior violent acts was a highly material aspect of Mr. Mendez’s case. Mr. Mendez’s testimony reflected the fact that the Justinianos were relentlessly attacking him, and only after being repeatedly thrown to the ground and beaten with fists, feet, handbags, and high heels was he able to defend himself by striking Jason Justiniano. See generally 713:14-723:25. Mr. Mendez’s knowledge of the Justinianos’ prior violent acts was a highly material aspect of his mental state that night; Miller expressly acknowledges that. See Miller, 39 N.Y.2d at 551 (“[K]nowledge of specific instances of violence by the victim may have a … significant impact on a defendant’s mental state.”); see also id. at 548 (“[T]he perceptions, the state of mind, of the participants to the encounter are critical to a claim of justification.”). Exclusion of this evidence prevented Mr. Mendez from presenting a complete defense, as it made it impossible for the jury to fully assess Mr. Mendez’s mental state that night, which was a principal issue in this case. Moreover, the excluded evidence concerning the Justinianos’ prior violent acts could have affected the jury’s determination of the Justinianos’ credibility, as well as the factual question of who was the initial aggressor. Therefore, Mr. Mendez’s conviction must be reversed for this reason as well. IV. Conclusion For the reasons described above, Mr. Mendez’s conviction must be reversed. Hon. Andrew W. Klein February 13, 2015 Page 9 Respectfully submitted, Richard M. Greenburg, Esq. Attorney for Defendant-Appellant Margaret E. Knight, Esq. Supervising Attorney Office of the Appellate Defender 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 By: __________________________________ C. Austin Ginnings, Esq. Of Counsel Fitzpatrick, Cella, Harper & Scinto 1290 Avenue of the Americas New York, NY 10104 (212) 218-2100 cc: Jared Wolkowitz, Esq. Office of the District Attorney New York County