The People, Respondent,v.Edwin Mendez, Appellant.BriefN.Y.October 15, 2015To be argued by: C. AUSTIN GINNINGS, ESQ. SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ___________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- EDWIN MENDEZ, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. MARGARET E. KNIGHT, ESQ. OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 Attorneys for Defendant-Appellant C. AUSTIN GINNINGS, ESQ. caginnings@fchs.com Of Counsel FITZPATRICK, CELLA, HARPER & SCINTO 1290 Avenue of the Americas New York, NY 10104 (212) 218-2100 TABLE OF CONTENTS PRELIMINARY STATEMENT.............................................................................1 QUESTIONS PRESENTED...................................................................................3 STATEMENT OF FACTS .....................................................................................4 Edwin Mendez Had Observed Earlier Violent Acts by the Justinianos ....................................................................................................4 Mr. Mendez Testified that the Justinianos Attacked Him..............................5 Dominic O’Grady Corroborated Mr. Mendez’s Testimony...........................7 Jason Justiniano Received Treatment at the Hospital ....................................8 The Prosecution Attempted to Undermine Mr. Mendez and Mr. O’Grady’s Testimony ...................................................................................9 The Prosecution’s Witnesses Told Highly Inconsistent Stories at Trial ............................................................................................................10 The Court Refused to Allow Mr. Mendez to Introduce Evidence of the Justinianos’ Prior Violent Acts..............................................................14 Mr. Mendez Was Convicted after Justice McLaughlin Ignored Three Jury Notes.........................................................................................17 Justice McLaughlin Erroneously Denied Mr. Mendez’s Motion to Set Aside the Verdict and Gave Him the Maximum Sentence, Believing Mr. Mendez Was Charged with Attempted Murder ....................19 ARGUMENT........................................................................................................21 POINT I: JUSTICE MCLAUGHLIN COMMITTED A MODE OF PROCEEDINGS ERROR WHEN HE FAILED TO MAKE AN ADEQUATE RECORD OF AND RESPOND TO THREE JURY NOTES. ......................................................................................................21 A. The Court Unquestionably Failed to Read Into the Record or Respond to The Last Three Jury Notes In Accordance with Crim. Proc. Law § 310.30............................21 - ii - B. The Court’s Failure to Respond to the Last Three Jury Notes Was a Mode of Proceedings Error That Does Not Require Preservation. .......................................................23 C. The Failure to Respond to Court Exhibit 11 Was Especially Egregious Because It Demonstrated that the Jury Was Speculating About Matters Not in Evidence. ................................................................................26 D. A Reconstruction Hearing Is Not Necessary Because No Response Was Ever Given to the Jury. ..............................26 POINT II: MR. MENDEZ WAS IMPROPERLY PRECLUDED FROM INTRODUCING EVIDENCE OF THE JUSTINIANOS’ PRIOR VIOLENT ACTS OF WHICH HE HAD KNOWLEDGE, IN VIOLATION OF BLACK-LETTER NEW YORK LAW......................29 A. Under Well-Established New York Law, Mr. Mendez Should Have Been Allowed to Introduce Evidence Concerning the Justinianos’ Prior Violent Acts.......................30 1. Mr. Mendez’s Justification Defense Permitted Introduction of Evidence Concerning the Justinianos’ Prior Violent Acts......................................30 2. Mr. Mendez Also Was Entitled to Introduce Evidence of the Justinianos’ Prior Violent Acts to Impeach the Justinianos’ Credibility. ........................33 B. Justice McLaughlin’s Reasons for Excluding Evidence of the Justinianos’ Prior Violent Acts Were Legally Incorrect.....................................................................34 C. Mr. Mendez Unquestionably Preserved This Issue for Appeal. ...................................................................................38 D. Justice McLaughlin’s Preclusion of This Evidence Was Not Harmless Error. ........................................................39 CONCLUSION ....................................................................................................43 - iii - TABLE OF AUTHORITIES Cases Crane v. Kentucky, 476 U.S. 683 (1986).........................................................29, 39 People v. Almodovar, 62 N.Y.2d 126 (1984) ........................................................24 People v. Arnold, 96 N.Y.2d 358 (2001)...............................................................26 People v. Caban, 78 A.D.3d 403 (1st Dep’t 2010) ................................................23 People v. Collier, 303 A.D.2d 1008 (4th Dep’t 2003) .....................................35, 36 People v. Crimmins, 36 N.Y.2d 230 (1975) ..........................................................39 People v. Cruz, 14 N.Y.3d 814 (2010) ............................................................27, 28 People v. Diallo, 746 N.Y.S.2d 479 (1st Dep’t 2002) ...........................................39 People v. Donoso, 78 A.D.3d 129 (1st Dep’t 2010) ..............................................24 People v. Douglas, 29 A.D.3d 47 (1st Dep’t 2006) ...................................29, 30, 32 People v. Fenton, 105 A.D.3d 1057 (2d Dep’t 2013) ............................................27 People v. Gerrara, 88 A.D.3d 811 (2d Dep’t 2011) ..............................................25 People v. Goetz, 68 N.Y.2d 96 (1986)...................................................................30 People v. Gonzalez, 61 N.Y.2d 633 (1983) ...........................................................21 People v. Hough, 261 A.D.2d 238 (1st Dep’t 1999)..............................................26 People v. Kadarko, 14 N.Y.3d 426 (2010) ............................................................24 People v. Kahley, 105 A.D.3d 1322 (4th Dep’t 2013) ...........................................27 People v. Kisoon, 8 N.Y.3d 129 (2007).................................................................23 People v. Lilly, 264 A.D.2d 684 (1st Dep’t 1999) .................................................26 People v. Lockley, 84 A.D.3d 836 (2d Dep’t 2011) .........................................22, 23 People v. Magliato, 68 N.Y.2d 24 (1986) .............................................................36 - iv - People v. Malloy, 55 N.Y.2d 296 (1982)...............................................................24 People v. McManus, 67 N.Y.2d 541 (1986) ..........................................................36 People v. Mejias, 21 N.Y.3d 73 (2013) .................................................................26 People v. Miller, 39 N.Y.2d 543 (1976) .........................................................passim People v. O'Rama, 78 N.Y.2d 270 (1991) ......................................................passim People v. Owens, 550 N.Y.S.2d 934 (2d Dep’t 1990) ...........................................39 People v. Parks, 925 N.Y.S.2d 468 (1st Dep’t 2011) ............................................39 People v. Powell, 101 A.D.3d 756 (2d Dep’t 2012) ........................................23, 27 People v. Raosto, 50 A.D.3d 508 (1st Dep’t 2008)................................................39 People v. Rodwell, 100 A.D.2d 772 (1st Dep’t 1984)............................................32 People v. Sorge, 301 N.Y. 198 (1950)...................................................................33 People v. Tabb, 13 N.Y.3d 852 (2009)............................................................23, 25 People v. Taylor, 135 A.D.2d 848 (2nd Dep’t 1987).............................................33 People v. Velasquez, 1 N.Y.3d 44 (2003)..............................................................27 People v. Weaver, 89 A.D.3d 1477 (4th Dep’t 2011) ......................................22, 25 People v. Wesley, 76 N.Y.2d 555 (1990)...............................................................30 People v. Williams, 88 A.D.3d 463 (1st Dep’t 2011).............................................23 People v. Woods, 290 A.D.2d 346 (1st Dep’t 2002)..............................................24 Statutes Crim. Proc. Law § 310.30 ..............................................................................passim Crim. Proc. Law § 330.30(1).................................................................................19 Crim. Proc. Law § 470.05(2).................................................................................39 Penal Law § 35.15(2) ............................................................................................38 - v - Penal Law § 70.04(3)(c)........................................................................................19 Penal Law § 120.05(2) ......................................................................................1, 38 Penal Law § 120.10(1) ......................................................................................1, 38 Constitutional Provisions N.Y. Const., art. I, § 6...........................................................................................29 U.S. Const., amend. VI .........................................................................................29 U.S. Const., amend. XIV ......................................................................................29 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – EDWIN MENDEZ. Defendant-Appellant. Indictment No. 351/2011 PRELIMINARY STATEMENT This is an appeal from a judgment of conviction rendered on January 10, 2012, by the Supreme Court, New York County. Edwin Mendez was charged under Indictment No. 351/2011 with assault in the first degree (with respect to complainant Jason Justiniano) and assault in the second degree (with respect to complainant Edwin Justiniano). Penal Law §§ 120.05(2), 120.10(1). After a seven-day trial, Mr. Mendez was acquitted of the charge relating to Edwin Justiniano. He was found guilty only on the lesser-included offense of assault in the second degree with respect to complainant Jason Justiniano and was given the maximum sentence of seven years’ imprisonment, followed by a five-year term of post-release supervision. (McLaughlin, J., at trial and sentencing.) - 2 - Timely notice of appeal was filed, and this Court granted Mr. Mendez leave to prosecute this appeal as a poor person on the original record and reproduced appellant’s brief. No stay of execution has been sought. Mr. Mendez is currently serving his sentence. - 3 - QUESTIONS PRESENTED 1. Whether the court committed a mode of proceedings error under Crim. Proc. Law § 310.30 in failing to read three jury notes into the record, failing to seek input from counsel on potential responses to these three jury notes on the record, and failing to respond on the record to these three jury notes? 2. Whether the court erred in repeatedly precluding Mr. Mendez from introducing evidence of his attackers’ prior violent acts in contravention of well- established New York law, when Mr. Mendez had personal knowledge of the acts and the acts occurred shortly before and at the same location as the incident here? - 4 - STATEMENT OF FACTS Edwin Mendez was convicted of assault in the second degree as a result of a fight outside a nightclub in Manhattan involving four siblings (Jason, Edwin, and Jennifer Justiniano and Stephanie Nazario). However, Mr. Mendez’s trial suffered from two critical defects. First, Justice McLaughlin failed to properly handle and respond to three notes sent by the jury during their deliberations. Also, Mendez was improperly precluded from introducing crucial evidence of his justification defense—testimony concerning violent fights that his attackers were involved in at the nightclub. Edwin Mendez Had Observed Earlier Violent Acts by the Justinianos Mr. Mendez was formerly employed at Club Escuelita, a nightclub in Manhattan. Tr. 705:19-706:6, 749:12-14.1 All four of the Justiniano siblings were frequent patrons of Club Escuelita. Tr. 707:8-709:11; see also Tr. 164:10-11, 212:16-20, 414:24-415:1, 451:7-13. During his employment there, Mr. Mendez observed both Jason and Jennifer Justiniano display violent behavior. For example, Mr. Mendez once saw Jennifer Justiniano throw a glass at another patron at the club during an argument. Tr. 740:22-741:5; see also Tr. 413:17-414:19 (Jennifer Justiniano acknowledging prior fights at Club Escuelita). Moreover, as 1 Citations herein to “Tr. __” refer to the transcript of the trial before Justice Edward J. McLaughlin held on December 7-19, 2011. Citations herein to ‘S. __” refer to the transcript of the sentencing proceeding held before Justice McLaughlin on January 10, 2012. - 5 - addressed further infra, the full of extent of the Justinianos’ past violent acts was not even elicited at trial based on the court’s improper preclusion of this evidence. Mr. Mendez Testified that the Justinianos Attacked Him Early in the morning on January 23, 2011, Mr. Mendez and a friend (Anthony Adomis) were standing in the sidewalk near the corner of 38th Street and 8th Avenue in Manhattan, speaking to two women. Tr. 709:24-712:24; 754:1-9. At one point in the conversation, one of the women invited Mr. Mendez to accompany her to a hotel room. Tr. 713:1-13. At that moment, four siblings (Jason, Edwin, and Jennifer Justiniano and Stephanie Nazario) were walking past Mr. Mendez and overheard Mr. Mendez’s conversation. Tr. 713:16-20; see also Tr. 113:18-24; 217:5-219:4; 392:6-18; 454:24-455:10. Jason Justiniano, who was severely intoxicated (with a blood alcohol level two and a half times the legal limit) and under the influence of marijuana and ecstasy and mistakenly thought that Mr. Mendez’s overture was directed at his sister, began an argument with Mr. Mendez. Tr. 713:14-714:22; see also Tr. 105:13-108:4, 108:20-24, 109:23-110:6 (Jason Justiniano admitting alcohol, marijuana, and ecstasy use), 553:21-554:16 (treating physician discussing Jason Justiniano’s blood alcohol level), 583:18- 585:20 (defense expert discussing side effects of ecstasy use, including increased paranoia, irritability, and aggressiveness, especially when used with alcohol). - 6 - Despite his sisters’ efforts to restrain him, Jason Justiniano then attacked Mr. Mendez. Tr. 714:20-715:2. A fist fight ensued. See Tr. 714:22-715:25. At one point, Mr. Mendez came to Mr. Adomis’s aid, as Mr. Adomis had fallen to the ground in the middle of 8th Avenue and was being beaten not only by Edwin Justiniano, but also by his two sisters, who were using pocketbooks and six-inch heels to strike Mr. Adomis. Tr. 716:1-718:7; see also Tr. 244:19-245:5, 255:14-15 (Stephanie Nazario testifying that her 4.5-inch heels were a “lethal weapon”); 403:2-7 (Jennifer Justiniano testifying that she wore six-inch heels that night). However, this only allowed Mr. Adomis to escape, and all four siblings began attacking Mr. Mendez, and their attack continued all around the intersection of 39th Street and 8th Avenue. Tr. 718:7-721:11. Mr. Mendez, trying to ward off his attackers (including an intoxicated, drugged, and violent Jason Justiniano), fled to a nearby food vendor cart. Tr. 721:21-722:4. After being unable to place the cart between him and his attackers, Mr. Mendez, continuing to fear for his safety, grabbed a meat tenderizer from the cart. Tr. 722:4-8; see also Tr. 722:723:13. When Jason Justiniano lunged at Mr. Mendez to continue his unprovoked assault, Mr. Mendez reacted by striking Jason Justiniano with the meat tenderizer, causing him to fall. Tr. 723:13-25. Mr. Mendez then dropped the meat tenderizer and walked away, heading west on 39th Street toward Club Escuelita. Tr. 723:25-724:7. He was assaulted - 7 - again by Edwin Justiniano in front of Club Escuelita, and a brief fist fight began until security personnel at the club allowed Mr. Mendez to escape inside. Tr. 724:2-24. The security supervisor, aware of the fight, refused to allow Mr. Mendez to remain safely inside the club. Tr. 725:2-22. As soon as Mr. Mendez exited the club, the Justinianos advanced toward him again, so Mr. Mendez ran west on 39th Street to attempt to avoid being beaten further. Tr. 725:25-726:18. When he arrived at the intersection of 39th Street and 9th Avenue, he flagged down an NYPD police vehicle for help. Tr. 727:2-8; see also Tr. 56:17-57:14 (Officer Philips confirming that Mr. Mendez flagged him down for help); 86:17- 87:11 (Sergeant Failla confirming same). However, the Justiniano siblings caught up to Mr. Mendez, and when the officers heard about and investigated Jason Justiniano’s injuries, they instead arrested Mr. Mendez. Tr. 727:9-728:8. Dominic O’Grady Corroborated Mr. Mendez’s Testimony Dominic O’Grady, an employee of Club Escuelita who knew Mr. Mendez and the Justiniano siblings, corroborated Mr. Mendez’s account of the fight between Mr. Mendez and the Justiniano siblings. Specifically, shortly after 5:00 a.m. on January 23, 2011, Mr. O’Grady initially observed (via Club Escuelita’s security cameras) several individuals beating a man on the corner of 39th Street and 8th Avenue. Tr. 636:16-637:10; see also Tr. 639:1-23; but see Tr. 273:11- 276:20 (investigating detective claiming that, at time of incident, no video camera - 8 - recorded corner of 39th Street and 8th Avenue); 294:17-297:6 (Club Escuelita security head claiming same). Upon walking outside the club, Mr. O’Grady observed the individuals continue beating the man, until the crowd around them suddenly dispersed and Jason Justiniano fell to the ground. Tr. 640:1-20. Mr. O’Grady saw a meat tenderizer in Mr. Mendez’s hand. Tr. 640:20-21. Mr. O’Grady confirmed that Edwin Justiniano next attacked Mr. Mendez near the entrance to Club Escuelita, but Mr. Mendez was soon able to escape into Club Escuelita. Tr. 641:9-642:18. Mr. O’Grady also confirmed that security personnel at the club forced Mr. Mendez to leave, and Mr. Mendez ran west on 39th Street to escape the Justinianos. Tr. 643:24-644:25. Mr. O’Grady then observed Mr. Mendez being arrested at the intersection of 39th Street and 9th Avenue. Tr. 645:18-646:20. Jason Justiniano Received Treatment at the Hospital Following the fight, Jason Justiniano was taken to Bellevue Hospital. Tr. 145:14-22. There, Mr. Justiniano’s blood alcohol content was measured at 200 milligrams per deciliter (or 0.20, two and a half times the legal limit). Tr. 553:21- 554:16. He was diagnosed with a depressed skull fracture and released approximately 24 hours later. Tr. 536:3-5; 547:21-548:8. No surgery or home care was necessary, and he was given ibuprofen and anti-seizure medication (as a - 9 - precaution) and was told to rest and not do heavy lifting for three to four weeks. Tr. 148:22-149:20, 192:22-195:21, 555:2-13. The Prosecution Attempted to Undermine Mr. Mendez and Mr. O’Grady’s Testimony The prosecution was permitted to liberally cross-examine Mr. Mendez and Mr. O’Grady concerning a variety of topics. For example, the prosecution cross- examined Mr. Mendez concerning his prior bad acts, both before and after January 23, 2011, and to a significantly greater extent than (as discussed infra) Mr. Mendez’s counsel was permitted to cross-examine the Justinianos. See generally Tr. 747:16-749:3 (past narcotics possession and assault charges and contraband incidents while incarcerated); 775:12-777:21 (suggesting that Mr. Mendez offered to compensate Mr. O’Grady for his testimony, which was unequivocally denied); 778:11-782:3 (attempts to compensate Justinianos for dropping the charges against Mr. Mendez). The prosecution also questioned Mr. Mendez about several statements he made during phone calls while incarcerated. See generally Tr. 755:24-763:9 (attempts to contact the Justinianos), 767:19-775:11 (discussing incident with Anthony Adomis and attempting to convince Mr. Adomis to exaggerate his injuries at trial2); see also Tr. 763:19-767:15 (discussing statements 2 Mr. Adomis never testified at trial, despite efforts of defense counsel to compel him to appear, including the issuance of a material witness order by the court. See Tr. 442:3-19; 734:18-20; 735:15-736:16. - 10 - allegedly made by Mr. Mendez’s attorney during arraignment, including a denial that Mr. Mendez struck Jason Justiniano). The prosecution also cross-examined Mr. O’Grady extensively concerning his criminal record (including a weapon possession charge that the prosecution questioned Mr. O’Grady about at length, because Mr. O’Grady had told police officers that he was a police officer himself) and his interactions with Mr. Mendez while they were both incarcerated. See generally 666:22-683:20; 702:13-703:8. The Prosecution’s Witnesses Told Highly Inconsistent Stories at Trial During Mr. Mendez’s trial, the prosecution offered testimony from all four of the Justiniano siblings, who claimed that Mr. Mendez was the primary aggressor during the encounter. The Justiniano siblings testified that, after leaving Club Escuelita after a night of moderate drinking, smoking marijuana, and ingesting ecstasy, they encountered Mr. Mendez and another man on 8th Avenue, whereupon one of them made an overture at Jennifer Justiniano and Stephanie Nazario. See generally Tr. 103:18-115:8, 207:19-217:14, 386:4-392:16, 450:23- 455:10. The Justiniano siblings then claimed that an argument ensued, after which either Mr. Mendez or the other man initiated a fist fight that lasted several minutes, until Mr. Mendez and the other man ran away. See generally Tr. 115:9-122:8, 219:24-226:14, 392:16-396:22, 455:10-458:21. The Justiniano siblings then claimed that Mr. Mendez returned to confront them with a meat tenderizer in his - 11 - hand, and that Mr. Mendez struck Jason Justiniano (and perhaps Edwin Justiniano) with the meat tenderizer. See generally Tr. 128:22-133:1, 228:1-232:16, 397:12- 398:1, 459:13-462:9.3 The Justiniano siblings admitted that at least two of them then began beating Mr. Mendez until he escaped inside Club Escuelita. See generally Tr. 403:8-405:24, 464:8-468:14. While the Justiniano siblings’ stories shared this common theme, they were highly inconsistent in their accounts of the events of that morning, both amongst themselves and when measured against the testimony of most of the prosecution’s eight other witnesses (four NYPD personnel, two employees of Club Escuelita, a doctor (Dr. Steven Russell), and a street vendor). For example, the Justiniano siblings’ testimony left unclear the following questions: How much did Jennifer Justiniano drink that night? Jason Justiniano testified that, on the night of January 23, 2011, Jennifer Justiniano drank approximately four shots of liquor and smoked marijuana before arriving at Club Escuelita, Tr. 105:13-17, 107:7-25, but their sister (Stephanie Nazario) testified that Jennifer Justiniano had just had oral surgery and was not drinking that night, Tr. 247:5-6. Jennifer Justiniano testified to having one or two shots of liquor, smoking marijuana, and ingesting ecstasy before arriving at the club. Tr. 387:2-3, 15-16, 388:18-19. All four of the Justiniano siblings testified 3 The prosecution called three other witnesses who observed some portion of the fight. Two employees of Club Escuelita (Raymond Lorenzo and Joel Royster) claimed that they witnessed a verbal altercation prior to Jason Justiniano being struck. Tr. 298:23-300:21; 563:8-18. The third witness (Maged Khalil, the food cart vendor near Club Escuelita) corroborated Mr. Mendez’s account in substantial portion, testifying that numerous individuals were fighting near his food cart and, amidst this fighting, one man grabbed a meat tenderizer from the cart and struck a person standing about 10 feet away. See Tr. 372:14-375:11. - 12 - that Jennifer Justiniano vomited during the evening. Tr. 128:9-11; 225:20; 394:8-9; 459:16-17. How much did Jason Justiniano drink that night? Jason Justiniano testified on direct examination that, on January 23, 2011, he drank five shots of liquor, one beer, and two mixed drinks, smoked marijuana, and ingested ecstasy, Tr. 105:13-108:4, 108:20-24, 109:23- 110:6, yet he claimed to not feel intoxicated before the altercation with Mr. Mendez, Tr. 112:21-113:1. Then, on cross examination, Jason Justiniano said that he only had three shots of liquor. Tr. 156:16-20. But, as Dr. Russell testified, Jason Justiniano was “significant[ly]” intoxicated upon arriving at the hospital, and had a blood-alcohol content of 200 milligrams per deciliter (or 0.20 – two and a half times the legal limit). Tr. 553:21-554:16. Who attempted the first punch, and to where? Stephanie Nazario testified that the initial punch of Jason Justiniano was to the right side of the neck, Tr. 222:4-7, but Jason Justiniano testified that he was hit on the left side of his face, Tr. 119:3-6. Moreover, while Jason and Edwin Justiniano and Stephanie Nazario testified that Mr. Mendez threw the initial punch, Tr. 118:19-119:2, 221:24-222:1, 500:2-6, Jennifer Justiniano testified that the second man threw the first punch, Tr. 394:25-395:3. When did Edwin Justiniano begin fighting the second man? Jason Justiniano testified that, after being punched by Mr. Mendez, the second man then punched him too. Tr. 120:19-22. However, Edwin Justiniano testified that he punched the second man before the second man ever had a chance to punch Jason Justiniano. Tr. 501:16-502:21. Was there a fight before Jason Justiniano was struck with the meat tenderizer? Jason Justiniano testified that, before Mr. Mendez struck him with the meat tenderizer, he threw the first punch at Mr. Mendez. Tr. 130:15-18. Stephanie Nazario testified, however, that Mr. Mendez threw the first punch. Tr. 264:21-22. Jennifer Justiniano testified that no one threw a punch and that only Jason Justiniano was struck with the meat tenderizer. Tr. 397:22-23, 425:10-12. Edwin Justiniano testified that Mr. Mendez struck him with the meat tenderizer before he struck Jason Justiniano with it. Tr. 462:5-9. - 13 - Did Mr. Mendez ever strike Edwin Justiniano with the meat tenderizer? Jason Justiniano testified that, before Mr. Mendez struck him with the meat tenderizer, he could not see Edwin Justiniano, nor did he ever see Mr. Mendez strike Edwin Justiniano with the meat tenderizer. Tr. 190:4-21. However, like Edwin Justiniano, Stephanie Nazario testified that Edwin Justiniano was present at that time, Mr. Mendez first struck Edwin Justiniano with the meat tenderizer, and then struck Jason Justiniano. Tr. 229:9-232:16, 462:5-9. Where was Jason Justiniano when he was struck with the meat tenderizer? Jason Justiniano and Stephanie Nazario testified that, when Mr. Mendez struck Jason Justiniano with the meat tenderizer, he was not anywhere near the street vendor’s cart. Tr. 133:10-11, 257:17-19. However, the street vendor testified that they were ten feet away from his cart. Tr. 375:6-11. When did the police arrive? Jennifer Justiniano testified that police officers were already on the scene in front of Club Escuelita when Mr. Mendez went into Club Escuelita shortly after the fight (and prevented her from picking up the meat tenderizer). Tr. 429:20-430:4. Joel Royster (an employee of Club Escuelita) also testified that police officers pursued Mr. Mendez when he left the club and ran towards 9th Avenue. Tr. 312:14-19. However, none of the police officers testified that they were on the scene at that time, or that any officers pursued Mr. Mendez toward 9th Avenue. Did Jennifer Justiniano know Mr. Mendez? Jennifer Justiniano testified on direct examination that she had never seen Mr. Mendez before January 23, 2011, Tr. 402:22-23, but then testified minutes later on cross examination that she had seen him several times at Club Escuelita, Tr. 415:2-12. Is it possible for these siblings/roommates to never have discussed the events of that night before trial? Despite the fact that Jennifer and Edwin Justiniano lived together, Tr. 364:24-25, they both claimed they never spoke about the facts of this case during the eleven months between the incident and trial, Tr. 416:1-4; 491:21-23. - 14 - The Court Refused to Allow Mr. Mendez to Introduce Evidence of the Justinianos’ Prior Violent Acts At trial, Mr. Mendez sought to introduce evidence of the Justinianos’ assaultive history of which he had knowledge, both through cross-examination of the Justinianos and through his own direct testimony. In every instance, however, Justice McLaughlin refused to allow him to do so, instead only allowing bare- bones snippets of information into the record and continually changing his reasons for not allowing the questioning. First, Mr. Mendez’s counsel attempted to question Jason Justiniano on cross- examination regarding prior fights he and Jennifer Justiniano had been in at Club Escuelita.4 Tr. 164:10-165:4. However, after Jason Justiniano acknowledged that they had been in previous fights at the club, the court sua sponte cut off questioning and excused the jury for the day. Tr. 164:10-165:9. The next morning, Justice McLaughlin inquired as to the relevance of such fights. Tr. 167:13-25. Mr. Mendez’s attorney noted that the fights were “prior bad acts.” Tr. 168:21-25. Counsel also correctly explained that, under New York law, evidence of the Justinianos’ prior violent acts of which Mr. Mendez had been aware was admissible as part of Mr. Mendez’s justification defense. Tr. 168:1-25. 4 Based on Mr. Mendez’s prior employment at Club Escuelita (discussed supra) and Mr. Mendez’s counsel’s conversations with Jennifer and Edwin Justiniano about how they “love to fight,” Tr. 168:4, 423:22-423:2 (emphasis added), there was a good faith basis for the questions. - 15 - Notwithstanding the accuracy of Mr. Mendez’s counsel’s legal argument, Justice McLaughlin responded, “I don’t trust your client.” Tr. 169:1-2 (emphasis added). Justice McLaughlin then stated that Mr. Mendez’s counsel could not question Jason Justiniano concerning the prior fights without any proof that Jason Justiniano was arrested or civilly sued for those fights. Tr. 170:11-171:11. Once cross- examination resumed, the court prevented Mr. Mendez’s counsel from conducting further inquiry into Jason Justiniano’s prior fights. Tr. 173:3-11. Next, Mr. Mendez’s counsel attempted to ask Jennifer Justiniano on cross- examination about the prior fights she and Jason Justiniano had been in at Club Escuelita. Tr. 413:17-414:2. Jennifer Justiniano briefly testified that she and Jason Justiniano fought another man inside Club Escuelita when the man attempted to make an advance on her. Tr. 414:7-20. Mr. Mendez’s counsel was only able to ask about the events leading to this fight before Justice McLaughlin cut off counsel’s cross-examination. Tr. 414:20. Finally, Mr. Mendez’s counsel attempted to ask Mr. Mendez on direct examination about the Justinianos’ prior fights of which he had personal knowledge. Tr. 740:12-16. The court prevented Mr. Mendez from responding about “general knowledge” of the Justinianos’ prior fights at Club Escuelita. Tr. 742:20-21. Then, after Mr. Mendez’s counsel asked him about his personal knowledge of the fights and Mr. Mendez was allowed to state that he had once - 16 - seen Jennifer Justiniano throw a glass at someone in the club, Justice McLaughlin sustained an objection from the prosecution, and Mr. Mendez’s counsel requested a sidebar. Tr. 740:15-741:13. At the sidebar, Mr. Mendez’s counsel correctly stated that Mr. Mendez was allowed to testify about his personal knowledge of the Justinianos’ prior fights. Tr. 741:16-742:1, 742:20-24. Justice McLaughlin then changed his reasoning for precluding the questioning. Specifically, Justice McLaughlin apparently agreed with the prosecution’s view that the defense needed to prove that the Justinianos had a general reputation for violence and noted that such a showing had not been made. Tr. 742:11-14. Justice McLaughlin also erroneously opined that, absent any proof that deadly physical force was used in the prior fights, testimony about them was inadmissible. Tr. 742:14-16. Justice McLaughlin even went so far as to conclude that, based on Mr. Mendez’s testimony, his striking of Jason Justiniano was an “unintentional act,” such that this evidence did not even support a justification defense.5 Tr. 742:25-743:17. 5 Mr. Mendez’s testimony clearly supported a justification defense. Mr. Mendez testified that, after being attacked, there came a point where Jason “tried to punch [him]” and “it [hitting Jason Justiniano with the meat tenderizer] was just a reaction.” Tr. 723:19. Whether or not a jury could have found that Mr. Mendez did not form an intent to injure Jason Justiniano, this testimony in no way suggested that there was not a reasonable basis for a justification defense. The court clearly recognized this when it charged the jury on justification, Tr. 877:25-882:13, even conceding that not doing so would be reversible error. Tr. 807:2-8 (“I have seen enough cases where if there is a conviction, if there is an appeal, this is a do over.”). - 17 - After the court refused to allow further questioning, counsel made a record that he wanted to pursue questioning about the involvement of other Justiniano siblings in Jennifer Justiniano’s prior fights. Tr. 743:18-22. However, even after Justice McLaughlin’s law clerk urged that Mr. Mendez’s counsel’s interpretation of the law was correct, Justice McLaughlin still refused to allow any further questioning because (in another change of reasoning) the prior fights allegedly did not involve deadly physical force. Tr. 744:2-4. On redirect examination of Mr. Mendez, counsel renewed the argument that Mr. Mendez was at least allowed to testify about the Justinianos’ prior fight that Mr. Mendez had personally observed, even citing the seminal New York Court of Appeals decision that allows such testimony, People v. Miller, 39 N.Y.2d 543 (1976). Tr. 782:12-24. Specifically, counsel noted that it was important for him to be able to explore the involvement of Jennifer and Jason Justiniano in a fight at Club Escuelita. Id. Despite claiming familiarity with Miller, Justice McLaughlin’s response was again to state that, absent any proof that deadly physical force was used in the prior fights, testimony about them was inadmissible. Tr. 782:25- 783:17. Mr. Mendez Was Convicted after Justice McLaughlin Ignored Three Jury Notes During the course of the prosecution’s case-in-chief, the prosecution played recordings of several phone conversations between Mr. Mendez and other - 18 - individuals while he was incarcerated before trial. Tr. 623:22-625:20. During the playing of these calls, the jurors were given transcripts of the recordings. Tr. 621:9-622:7. The transcripts, however, were not admitted into evidence. Tr. 622:9-10. The prosecution also played a recording of a 911 call concerning the fight between Mr. Mendez and the Justinianos. Tr. 568:8-569:16. During the course of jury deliberations, the jury sent Justice McLaughlin a total of 10 notes. See Court Exhibits 4-13. One requested a re-reading of the charges in abbreviated form (Court Exhibit 9), one informed Justice McLaughlin that the jury had reached a verdict (Court Exhibit 13), and the remaining eight requested various items (some of which were referenced at trial but not introduced into evidence) and readbacks of testimony and asked a speculative question about the potential existence of evidence not introduced at trial. Of those eight, Justice McLaughlin only addressed five of them (Court Exhibits 4-8), see generally Tr. 914:7-915:23, ignoring the other – and last – three before a verdict was rendered (Court Exhibits 10-12). Specifically, the jury: Twice requested the transcripts of the recordings that were played during the prosecution’s case-in-chief (Court Exhibits 10 and 12); and Asked whether there were any other 911 calls about the incident that were not played during the trial (Court Exhibit 11). These notes were not read into the record at any time, nor is there any record that counsel was ever apprised of these notes or that any response was given to the jury. - 19 - Justice McLaughlin Erroneously Denied Mr. Mendez’s Motion to Set Aside the Verdict and Gave Him the Maximum Sentence, Believing Mr. Mendez Was Charged with Attempted Murder After the jury convicted Mr. Mendez of assault in the second degree, Mr. Mendez made a motion under Crim. Proc. Law § 330.30(1) to set aside the verdict. In this motion, Mr. Mendez again correctly articulated that, under Miller and its progeny, the defense should have been permitted to introduce evidence about the Justinianos’ prior fights of which he had personal knowledge. The prosecution never filed a response to the motion. Justice McLaughlin addressed the motion at Mr. Mendez’s sentencing hearing, merely stating, “I’m perfectly comfortable with the evidentiary rulings which were the interpretation of Miller and we’ll see what the First Department has to say if there’s an appeal, so it’s denied.” S. Tr. 4:23- 5:1. The court then proceeded to sentencing. Based on his conviction, Mr. Mendez was subject to a determinate sentence between five and seven years. Penal Law § 70.04(3)(c). The prosecution requested the maximum sentence based on Mr. Mendez’s prior record and alleged uncharged crimes. See S. 7:18-12:14. Mr. Mendez asked for a five- or six-year sentence based upon his expressed remorse. S. Tr. 12:16-25. During his deliberation concerning the sentence, Justice McLaughlin referenced alleged facts concerning Mr. Mendez’s prior record that did not appear anywhere in the record of this case, made multiple references to Mr. Mendez’s - 20 - “mother’s prayers,” and even alleged that Mr. Mendez had been charged with attempted murder in this case. S. Tr. 13:3-14:4. After making these unfounded comments, Justice McLaughlin agreed with the prosecution and gave Mr. Mendez the maximum sentence of seven years. S. Tr. 14:5-6. - 21 - ARGUMENT POINT I JUSTICE MCLAUGHLIN COMMITTED A MODE OF PROCEEDINGS ERROR WHEN HE FAILED TO MAKE AN ADEQUATE RECORD OF AND RESPOND TO THREE JURY NOTES. The court committed a mode of proceedings error when it failed to respond to the jury’s last three notes (Court Exhibits 10-12). While the court read into the record, informed counsel of, and responded to several ministerial requests for exhibits and read-backs of testimony in earlier notes, it failed to respond to the speculative question and substantive requests in the last three notes. Because the court committed a mode of proceedings error, no preservation of this issue was required, and this error requires reversal.6 A. The Court Unquestionably Failed to Read Into the Record or Respond to The Last Three Jury Notes In Accordance with Crim. Proc. Law § 310.30. “At any time during its deliberation, the jury may request the court for further instruction or information … with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case.” Crim. Proc. Law § 310.30. “[W]henever a substantive written jury communication is received by the Judge, it should be marked as a 6 Because Mr. Mendez was convicted only of a lesser included offense and reversal on legal grounds is required, he cannot be further prosecuted under this indictment and it must be dismissed to avoid double jeopardy. See, e.g., People v. Gonzalez, 61 N.Y.2d 633, 635 (1983). - 22 - court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel.” People v. O'Rama, 78 N.Y.2d 270, 277-78 (1991). After the note is read into the record, “counsel should be afforded a full opportunity to suggest appropriate responses. The court should then ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate.” People v. Lockley, 84 A.D.3d 836, 837 (2d Dep’t 2011); see also O'Rama, 78 N.Y.2d at 278. Finally, “[o]nce the jury is returned to the courtroom, the communication should be read in open court,” and the court must respond to the note. Lockley, 84 A.D.3d at 837; see also People v. Weaver, 89 A.D.3d 1477, 1479 (4th Dep’t 2011) (holding that trial court “failed to comply with [Crim. Proc. Law § 310.30] in that it did not … give any response to the jury”). While the last three jury notes were marked as Court Exhibits 10-12, nothing further was done with them. These jury notes were never read into the record, neither notice to—nor responses from—counsel appear on the record, Justice McLaughlin did not inform counsel on the record of any response he intended to give, the notes were never read in open court, and no response was given to the jury. Thus, Justice McLaughlin unquestionably failed to comply with the requirements of Crim. Proc. Law § 310.30 and O’Rama with respect to these jury notes. - 23 - B. The Court’s Failure to Respond to the Last Three Jury Notes Was a Mode of Proceedings Error That Does Not Require Preservation. When a court “fails to fulfill its ‘core responsibility’ under [Crim. Proc. Law § 310.30] by depriving the defendant of meaningful notice of the communication or a meaningful opportunity to participate in the formulation of the court’s response, the error affects the mode of the proceedings” and warrants reversal. Lockley, 84 A.D.3d at 837 (quoting People v. Kisoon, 8 N.Y.3d 129, 134–35 (2007)); see also O’Rama, 78 N.Y.2d at 279-80. Such proof must appear in the record. See People v. Tabb, 13 N.Y.3d 852 (2009) (“In the absence of record proof that the trial court complied with its core responsibilities under [Crim. Proc. Law § 310.30], a mode of proceedings error occurred requiring reversal.”); see also People v. Powell, 101 A.D.3d 756, 759 (2d Dep’t 2012) (noting that “a showing that the contents of the jury note were revealed to counsel off the record would be of no avail … [because] procedure for complying with [Crim. Proc. Law § 310.30 must] occur on the record”). Such a mode of proceedings error “is exempt from preservation requirements and requires reversal as a matter of law.”7 People v. Caban, 78 A.D.3d 403, 404 (1st Dep’t 2010). 7 Where the record demonstrates that defense counsel had actual notice of the note and an opportunity to object to the court’s deviation from the O’Rama procedure, a mode of proceedings error may not have occurred. See People v. Williams, 88 A.D.3d 463, 464 (1st Dep’t 2011), aff’d, 21 N.Y.3d 932 (2013). Unlike in Williams, the record here does not demonstrate that counsel was ever apprised of the content of the jury notes. And, perhaps - 24 - Moreover, “[w]hile the trial court possesses some discretion in framing its answer, ‘it must respond meaningfully to the jury’s inquiries.’” People v. Woods, 290 A.D.2d 346, 347 (1st Dep’t 2002) (citing People v. Almodovar, 62 N.Y.2d 126, 131 (1984)); see also People v. Malloy, 55 N.Y.2d 296, 302 (1982) (stating that when “the court fails to give information requested upon a vital point[,] an omission cannot be ignored”). This Court has stated that, “[e]ven where the question posed is considered improper, rather than providing no response, in such instances a court should provide guidance, that is, a meaningful response to the note.” Woods, 290 A.D.2d at 347. Courts have upheld departures from O’Rama’s procedures only in limited circumstances where the trial court satisfies its “core responsibilities” under Crim. Proc. Law § 310.30 despite not following every aspect of the O’Rama procedure. See, e.g., People v. Kadarko, 14 N.Y.3d 426, 428-30 (2010) (finding no mode of proceedings error where trial court conveyed substance of jury’s note to counsel but declined to disclose entire note—which included a numerical breakdown of juror votes—until after jury had resumed deliberations); People v. Donoso, 78 A.D.3d 129, 132-35 (1st Dep’t 2010) (affirming conviction where, while trial court did not read jury’s note verbatim to counsel, “it did apprise defense counsel of the substance of the note” and “what the court’s response would have been”). even more importantly, the record does not indicate that the court ever responded to the jury notes. - 25 - Similarly, if a jury note is merely ministerial (e.g., it merely requests admitted exhibits or readback of testimony), failure to follow the O’Rama procedure is not a mode of proceedings error. See, e.g., People v. Gerrara, 88 A.D.3d 811, 812 (2d Dep’t 2011). What occurred here, however, was not a minor deviation. Justice McLaughlin unquestionably failed to fulfill all of his core responsibilities under O’Rama. The record does not indicate that Justice McLaughlin ever informed Mr. Mendez’s counsel or the prosecution of the last three jury notes. Nor does the record indicate that Justice McLaughlin sought input from Mr. Mendez’s counsel or the prosecution concerning its response to the last three jury notes. Most importantly, Justice McLaughlin never read these notes in open court or responded to any of them on the record. See, e.g., Tabb, 13 N.Y.3d at 852; Weaver, 89 A.D.3d at 1479. Also, the last three jury notes were not ministerial; they requested paper transcripts and translations (which were shown to the jury but not admitted into evidence) of recorded phone calls8 and asked (and speculated) about the existence of additional 911 calls. Therefore, Justice McLaughlin’s failure to respond at all 8 During the trial, Justice McLaughlin did inform the jury that they could not have the transcripts in the jury room with them. Tr. 622:6-16. Moreover, Justice McLaughlin informed the jury during the charge that they could come into the courtroom to have the calls played again while they had the transcripts. Tr. 869:6-11; see also Tr. 622:12-16. - 26 - (much less properly respond) to these jury notes was a mode of proceedings error that warrants reversal. C. The Failure to Respond to Court Exhibit 11 Was Especially Egregious Because It Demonstrated that the Jury Was Speculating About Matters Not in Evidence. The court’s failure to follow the O’Rama procedure with respect to Court Exhibit 11 was particularly egregious because, by asking if there were additional 911 calls that were not introduced into evidence, the note demonstrated that the jury was speculating about matters not in evidence. Jurors are not permitted to do this and must decide the case solely on the evidence introduced at trial. See, e.g., People v. Arnold, 96 N.Y.2d 358, 364 (2001); People v. Lilly, 264 A.D.2d 684, 685 (1st Dep’t 1999); People v. Hough, 261 A.D.2d 238 (1st Dep’t 1999). Here, Mr. Mendez was prejudiced because there is a grave risk that his conviction was not based solely on the trial evidence. Instead, Justice McLaughlin should have strongly admonished the jury not to speculate on matters that are not in evidence. Cf. People v. Mejias, 21 N.Y.3d 73, 78 (2013) (noting that court properly responded to potential of premature deliberations by admonishing the jury not to discuss the trial and asking them on the record if they had done so). D. A Reconstruction Hearing Is Not Necessary Because No Response Was Ever Given to the Jury. In certain instances where the record does not indicate how a court handled a jury note, cases are remitted to the court for a reconstruction hearing. See, e.g., - 27 - People v. Kahley, 105 A.D.3d 1322, 1325 (4th Dep’t 2013) (remitting case for reconstruction hearing “[b]ecause it is unclear from the record whether defendant was notified of the contents of the jury note or notes requesting a readback of” certain witnesses’ testimony); see also People v. Cruz, 14 N.Y.3d 814, 815-16 (2010) (noting Fourth Department’s remittal of case for reconstruction hearing where record did not reflect whether jury had received a requested document that was initially admitted into evidence but subsequently excluded). However, reconstruction is improper when it could not possibly provide proof that the court followed the procedures mandated by O’Rama. See, e.g., People v. Fenton, 105 A.D.3d 1057 (2nd Dep’t 2013) (reversing conviction based on O’Rama error because record, even if corrected by prosecution’s resettlement motion, would still fail to comply with O’Rama procedure); Powell, 101 A.D.3d at 758-59 (same). Here, a reconstruction hearing is unnecessary. While a “presumption of regularity” does attach to judicial proceedings when the record is unclear or ambiguous, see, e.g., People v. Velasquez, 1 N.Y.3d 44, 48 (2003), such a presumption, alone or coupled with any information that could result from a reconstruction hearing, would not cure the court’s failure to follow the O’Rama procedure. See also Cruz, 14 N.Y.3d at 816 (presumption of regularity overcome where “there was a significant, unexplained irregularity in the proceedings in that defendant established that the jury requested an exhibit not in evidence”). Justice - 28 - McLaughlin failed to, inter alia, read the last three jury notes and respond to them in open court. A reconstruction hearing could not remedy that failure. Moreover, unlike cases (like Cruz) where a record could be developed regarding whether or not material was sent to the jury, the jury note about the possibility of another 911 call required a strong admonishment by the court— activity that would not occur off the record, but instead in open court where the court reporter would transcribe the court’s instruction. This plainly did not happen here. The transcript is clear that the court reporters during the trial recorded the occurrences that transpired in the courtroom, assiduously noting what was said and when breaks were taken. No instruction was given. Thus, while a reconstruction hearing might sometimes be necessary to establish what occurred outside the record, there is no need for such a hearing where the record itself is clear. Therefore, the court’s failure to respond at all (much less properly respond) to the last three jury notes requires reversal. - 29 - POINT II MR. MENDEZ WAS IMPROPERLY PRECLUDED FROM INTRODUCING EVIDENCE OF THE JUSTINIANOS’ PRIOR VIOLENT ACTS OF WHICH HE HAD KNOWLEDGE, IN VIOLATION OF BLACK-LETTER NEW YORK LAW. The court erred when it did not allow testimony (both direct testimony from Mr. Mendez, as well as cross-examination of the Justinianos) concerning the Justinianos’ prior violent acts. Mr. Mendez knew of these acts, they were relevant to his state of mind at the time of his altercation with the Justinianos (and thus to his justification defense), and they were reasonably related in time and quality to the quarrel between Mr. Mendez and the Justinianos. Moreover, Justice McLaughlin’s ever-changing reasons for precluding the testimony were explicitly contrary to well-established New York law, and this error “seriously impaired [Mr. Mendez’s] constitutional right to present a complete justification defense” and thus requires reversal.9 People v. Douglas, 29 A.D.3d 47, 52 (1st Dep’t 2006); see also U.S. Const., amend. VI, XIV; N.Y. Const., art. I, § 6; Crane v. Kentucky, 476 U.S. 683, 690 (1986). In addition, Mr. Mendez’s counsel should have been allowed to question the Justinianos about prior bad acts to impeach their credibility. Especially where the prosecution was given wide latitude in its impeachment of the defense witnesses, 9 See note 6 supra. - 30 - the court’s refusal to allow the defense to do the same was both unfair and highly prejudicial. A. Under Well-Established New York Law, Mr. Mendez Should Have Been Allowed to Introduce Evidence Concerning the Justinianos’ Prior Violent Acts. Mr. Mendez should have been allowed to introduce evidence of the Justinianos’ prior violent acts, both as part of his justification defense and because it bore on the Justinianos’ credibility. 1. Mr. Mendez’s Justification Defense Permitted Introduction of Evidence Concerning 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 to the defense raised by the defendant. People v. Miller, 39 N.Y.2d 543, 552 (1976). Acts are considered reasonably related to the defense if they are “sufficiently related in time and quality to the situation facing [the] defendant” in the present case. See, e.g., Douglas, 29 A.D.3d at 51; see also People v. Wesley, 76 N.Y.2d 555, 559 (1990) (citing People v. Goetz, 68 N.Y.2d 96, 114-15 (1986)) (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 - 31 - 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 in Club Escuelita during his employment there. This knowledge was corroborated by defense counsel’s conversations Jennifer and Edwin Justiniano, as well as the admissions of Jennifer and Jason Justiniano at trial. 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 and in the post-trial motion to set aside the verdict, and neither the prosecution nor Justice McLaughlin legitimately questioned Mr. Mendez’s knowledge of these acts.10 Moreover, Mr. Mendez testified that he knew the Justinianos from working at Club Escuelita, and at least two of the Justinianos confirmed that they knew 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 (the club the 10 The prosecution did state that “it is creative for [Mr. Mendez] to say he had knowledge of [the Justinianos’] prior [assaultive] history because of what [the prosecution] know[s] of” Mr. Mendez. Tr. 169:3-9. However, the prosecution never provided any factual support for its assertions. More importantly, Justice McLaughlin never provided any basis for questioning Mr. Mendez’s knowledge of the Justinianos’ prior assaultive behavior other than his bald assertion that he did not “trust” Mr. Mendez. To the extent Justice McLaughlin’s decision was driven by his feeling that he didn’t “trust” Mr. Mendez, Tr. 169:2, the jury is responsible for making credibility determinations, not Justice McLaughlin. - 32 - Justinianos visited that night, and very near to which the fight occurred) only months before he was attacked by the Justinianos. Tr. 705:19-707:22; see also, e.g., 415:7-9, 488:22-24; see also 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 the Justinianos’ own admission, at least one of these prior violent acts arose out of advances that men made on Jennifer Justiniano, 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. Miller and its progeny permit a criminal defendant to introduce such evidence through the testimony of witnesses other than defendant himself/herself, and compromise rulings like Justice McLaughlin’s that allow limited, sanitized testimony about the victim’s prior violent acts prevent a defendant from introducing a complete defense. See, e.g., Douglas, 29 A.D. 3d at 48-51 (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”). - 33 - 2. Mr. Mendez Also Was Entitled to Introduce Evidence of the Justinianos’ Prior Violent Acts to Impeach the Justinianos’ Credibility. Any witness in a criminal trial “may be ‘interrogated upon cross- examination in regard to any vicious or criminal act of his life’ that has a bearing on his credibility as a witness.” People v. Sorge, 301 N.Y. 198, 200 (1950) (citation omitted). Also, “if the questions have basis in fact and are asked … in good faith, they are not rendered improper merely because of their number.” Id. Prior violent acts have a bearing on a witness’s credibility. See, e.g., People v. Taylor, 135 A.D.2d 848, 848-49 (2d Dep’t 1987) (finding that questioning of defendant regarding “a series of uncharged assaults” is allowable inquiry into prior bad acts). As discussed supra, Mr. Mendez had personal knowledge of the Justinianos’ prior violent acts, and his counsel repeatedly proffered that knowledge at trial. Thus, the questions Mr. Mendez’s counsel asked of the Justinianos had a basis in fact and were asked in good faith. Justice McLaughlin nonetheless opined that counsel could not question Jason Justiniano about his prior fights because there had been no criminal or civil charges lodged against him and, thus, the fights may have been justified or otherwise non-criminal. T.170:11-171:11. While counsel would have been bound by the witness’s answer, it certainly was unnecessary to prove that uncharged - 34 - assaults were not justified to establish a good faith basis for questioning about prior acts of violence. Therefore, under well-established New York law, Mr. Mendez was entitled to cross-examine the Justinianos siblings about their prior violent acts. B. Justice McLaughlin’s Reasons for Excluding Evidence of the Justinianos’ Prior Violent Acts Were Legally Incorrect. Beyond his bare distrust of Mr. Mendez, Justice McLaughlin provided three reasons for precluding Mr. Mendez from introducing evidence of the Justinianos’ prior violent acts. Specifically, Justice McLaughlin stated that (1) Mr. Mendez did not make a required showing of the Justinianos’ general reputation for violence, Tr. 170:11-171:11; 742:6-14, (2) according to Mr. Mendez’s testimony, his striking of Jason Justiniano was an “involuntary action,” Tr. 742:25-743:17, and (3) only evidence of prior violent acts involving the use of deadly physical force was admissible, 742:14-16; 744:10-12; 783:10-17. Each of these reasons is legally incorrect. First, Justice McLaughlin repeatedly stated that Mr. Mendez could not introduce evidence of the Justinianos’ prior violent acts because he had not developed a proper foundation to support a claim that the any of the Justinianos had a reputation for violence. Tr. 742:6-14. However, such a foundation is not necessary. Indeed, this is precisely the rule that Miller modified. See Miller, 39 N.Y.2d at 549 (noting the traditional rule that “while the deceased’s general - 35 - reputation for violence is provable, evidence of specific acts of violence by the deceased is inadmissible”); id. at 551 (holding that “[u]pon due reflection, … the present New York rule should be modified to permit a defendant in a criminal case, where justification is an issue, to introduce evidence of the victim’s prior specific actions of violence”). Despite Justice McLaughlin’s assertions that he was “familiar with Miller,” Tr. 782:25-783:10, he erroneously maintained this position. Contrary to Justice McLaughlin’s opinion, even if Mr. Mendez could not have proved that the Justiniano siblings had a reputation for violence,11 his counsel should have been allowed to elicit testimony from Mr. Mendez and the Justinianos regarding the Justinianos’ prior violent acts, of which Mr. Mendez was aware, to demonstrate Mr. Mendez’s mental state during the altercation.12 Justice McLaughlin also reasoned that, according to Mr. Mendez’s testimony, his striking of Jason Justiniano was an “unintentional act,” and that Mr. Mendez could only assert a justification defense if his action was intentional. Tr. 742:25-743:17. First, this argument misrepresents what Mr. Mendez actually stated; Mr. Mendez testified that his striking of Jason Justiniano was a “reaction,” 11 Because Mr. Mendez was prevented from testifying about the Justinianos’ reputation for violence, it is not clear whether or not a sufficient predicate could have been elicited. 12 Moreover, evidence of the victim’s reputation for violence is admissible under Miller. See People v. Collier, 303 A.D.2d 1008, 1009 (4th Dep’t 2003) (citing Miller, 39 N.Y.2d at 548- 49) (“[T]he court erred in refusing to allow defendant to testify with respect to his knowledge of the victim’s reputation for violence, inasmuch as the state of mind of defendant was critical to his justification defense.”). - 36 - Tr. 723:19, and did not state anything about his intent. Intent is an element of assault that the prosecution needed to prove, irrespective of Mr. Mendez’s justification defense. More importantly, if Justice McLaughlin’s reasoning were correct, a criminal defendant would never be able to dispute the intent element of a violent crime and still assert a justification defense (much less be able to introduce evidence of the victim’s prior acts of violence).13 Neither Miller and its progeny, nor any other applicable law or precedent, require that a criminal defendant concede intent in order to raise a justification defense. See Collier, 303 A.D.2d at 1009 (“Contrary to the People’s contention, defendant’s claim that the shooting was accidental does not preclude a justification charge.”); see also People v. Magliato, 68 N.Y.2d 24, 29 (1986) (quoting People v. McManus, 67 N.Y.2d 541, 547 (1986)) (“[T]here is no basis for limiting the application of the defense of justification to any particular mens rea or to any particular crime involving the use of force.”). Such a requirement would indeed run contrary to the long-standing principle that a criminal defendant may put the prosecution to its burden of proof on each and every element of a crime. Moreover, Justice McLaughlin remarked during the charge conference that he knew that, if he did not give a justification 13 Indeed, because intent is an element of assault, if Justice McLaughlin had so conclusively determined that Mr. Mendez’s act was unintentional, he should have acquitted Mr. Mendez instead of sending the case to the jury. - 37 - charge and Mr. Mendez was convicted, his decision would be reversed on appeal. See Tr. 607: 6-7 (“I have seen enough cases where if there is a conviction, if there is an appeal, this is a do over.”). Thus, while Justice McLaughlin believed that failure to allow a justification defense here would have been reversible error, he inexplicably precluded Mr. Mendez from introducing this crucial evidence that supported his defense. Finally, Justice McLaughlin reasoned that Mr. Mendez could not introduce evidence of the Justinianos’ prior violent acts unless they involved the use of deadly physical force. Tr. 742:14-16; 744:10-12; 783:10-17. Miller and its progeny do not require that the degree of physical force (i.e., deadly or non-deadly) be identical in the victim’s prior acts and the defendant’s acts during the altercation at issue; rather, Miller requires that the victim’s prior acts be sufficiently related in quality to the situation confronting the defendant. See Miller, 39 N.Y.2d at 548 (prior acts at issue included “pushing” and “throwing objects,” when defendant on trial for murder using a gun). In other words, the victim’s prior acts are to be compared to the victim’s acts at the time of the crime at issue, not to the defendant’s acts at that time. Thus, Justice McLaughlin erred by reasoning that, - 38 - because the Justinianos’ prior violent acts allegedly did not involve deadly physical force,14 testimony concerning them was not admissible. More importantly, in the process of requiring such a comparison, Justice McLaughlin expressly concluded that Mr. Mendez’s act constituted deadly physical force. Tr. at 742:14-16 (“What we’re talking about here is deadly physical force in response to deadly physical force.”). Such a conclusion is an express element of the defense of justification, see Penal Law § 35.15(2), and was thus a determination for the jury to make, not Justice McLaughlin. Moreover, in convicting Mr. Mendez of assault in the second, rather than first, degree, the jury strongly signaled that it believed either Mr. Mendez did not intend to inflict serious physical injury or that such an injury was not in fact inflicted. Compare Penal Law § 120.10(1) with Penal Law § 120.05(2). Therefore, each of the reasons Justice McLaughlin gave for precluding Mr. Mendez from introducing evidence of the Justinianos’ prior violent acts was legally incorrect. C. Mr. Mendez Unquestionably Preserved This Issue for Appeal. There can be no genuine dispute that Mr. Mendez preserved this issue for appeal; his counsel raised several objections and challenges to Justice 14 Moreover, Justice McLaughlin could not have known the nature of the force used in these prior events, as he did not allow complete inquiry into them, or even elicit the details of them in sidebars. - 39 - McLaughlin’s reasoning, see, e.g., Tr. 168:1-25; 741:13-744:12, 782:6-783:17, and Mr. Mendez also filed a post-trial motion to set aside the verdict which expressly argued this issue. Therefore, Mr. Mendez has properly preserved this issue for appeal. See Crim. Proc. Law § 470.05(2). D. Justice McLaughlin’s Preclusion of This Evidence Was Not Harmless Error. 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). Errors in the exclusion of evidence are considered harmless when, for example, the excluded evidence is cumulative of other admitted evidence, see, e.g., 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 (citing Crane, 476 U.S. at 690). 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”). - 40 - 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, the prosecution’s witnesses told widely inconsistent stories. For example, as discussed in detail supra, the Justinianos contradicted each other’s testimony on even the most essential details of the fight. Moreover, they 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, and their testimony was repeatedly contradicted by the prosecution’s other witnesses. The jury’s deliberation process and verdict also reflect this; the jury made multiple requests for evidence and testimony and for a re-reading of the charges, see Court Exhibits 4-13, and the jury ultimately acquitted Mr. Mendez of the charge related to Edwin Justiniano and only convicted him of least serious charge related to Jason Justiniano. 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 abandoned by Mr. Adomis and repeatedly thrown to the ground and beaten with fists, feet, handbags, and high heels was he able to defend himself by striking - 41 - 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 39 N.Y.2d 543, 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. Finally, the very limited amounts of information that Justice McLaughlin allowed about the Justinianos’ prior fights in no way cured the error. Notably, 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. Similarly, Justice McLaughlin 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 - 42 - details concerning his personal knowledge of the Justinianos’ assaultive history— evidence that was highly relevant to Mr. Mendez’s mental state. These sanitized tidbits of information did not provide sufficient evidence for the jury to adequately consider the encounter. Thus, the error was not harmless, and Mr. Mendez’s conviction must be reversed for this reason as well. By: C. Austin Ginnin s CONCLUSION For the reasons stated above, Edwin Mendez's conviction must be reversed and the indictment dismissed. Dated: New York, NY July 8, 2013 Respectfully submitted, RICHARD M. GREENBERG, ESQ. MARGARET E. KNIGHT, ESQ. mknight@appellatedefender.org Attorneys for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 C. AUSTIN GINNINGS, ESQ. caginnings@fchs.com Of Counsel FITZPATRICK, CELLA, HARPER & SCINTO 1290 Avenue of the Americas New York, NY 10104 (212) 218-2100 - 43 - - A-1 - SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – EDWIN MENDEZ, Defendant-Appellant. Indictment No. 351/2011 STATEMENT PURSUANT TO RULE 5531 1. The indictment number in the court below was 351/2011. 2. The full names of the original parties were The People of the State of New York – against – Edwin Mendez. 3. The action was commenced in Supreme Court, New York County. 4. The action was commenced by the filing of an indictment. 5. This is an appeal from a judgment convicting Edwin Mendez of one count of assault in the second degree, Penal Law § 120.05(2). Mr. Mendez was sentenced to a determinate term of seven years’ imprisonment, followed by a five-year term of post-release supervision. 6. This is an appeal from a judgment of conviction rendered on January 10, 2012. Justice Edward J. McLaughlin presided at the trial and sentencing. 7. Mr. Mendez has been granted leave to prosecute this appeal as a poor person on the original record and reproduced appellant’s brief. - A-2 - SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – EDWIN MENDEZ, Defendant-Appellant. Indictment No. 351/2011 PRINTING SPECIFICATIONS STATEMENT 1. The following statement is made in accordance with First Department Rule 600.10 (amended 2003). 2. Mr. Mendez’s brief was prepared in the word processing system Microsoft Word, with Times New Roman typeface, 14 point font (12 point font footnotes). 3. The text of the brief has a word count of 9,450, as calculated by the word processing system, and is 43 pages.