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. REPLY 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 RESPONSE TO THE PEOPLE’S STATEMENT OF FACTS ................................. 2 ARGUMENT ............................................................................................................. 5 POINT I: CONTRARY TO THE PEOPLE’S ARGUMENTS, JUSTICE MCLAUGHLIN COMMITTED A MODE OF PROCEEDINGS ERROR WHEN HE FAILED TO MAKE AN ADEQUATE RECORD OF AND RESPOND TO THREE JURY NOTES............................................................................................................. 5 A. Because Substantive Action Was Required in Response to the Jury Notes, for which Counsel Could Have Provided Meaningful Input, the Notes Were Not Ministerial Requests. .................................................. 5 1. Court Exhibits 10 and 12 Were Not Ministerial Requests. ........................................................ 7 2. Court Exhibit 11 Was Not A Ministerial Request. ............................................................................ 9 B. Respondent’s Argument Regarding the Presumption of Regularity Is Inherently Illogical. ................... 11 C. Mr. Mendez’s Conviction Must Be Reversed Because Court Exhibits 10-12 Were Substantive Requests to which Justice McLaughlin Failed to Properly Respond. ..................................................................... 13 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............................ 16 A. Mr. Mendez’s Offers of Proof Were Never Legitimately Questioned. .......................................................... 16 B. The Justinianos’ Prior Violent Acts At Issue Satisfy the “Quality” Requirement Under Miller. .................... 18 - ii - C. Justice McLaughlin’s Preclusion of this Evidence Was Not Harmless. ................................................................... 21 CONCLUSION ........................................................................................................ 23 - iii - TABLE OF AUTHORITIES Cases Matter of Y.K., 87 N.Y.2d 430 (1996) .....................................................................18 People v. Barker, 223 A.D.2d 899 (3d Dep’t 1996) ................................................19 People v. Caban, 78 A.D.3d 403 (1st Dep’t 2010) ..................................................14 People v. Cruz, 14 N.Y.3d 814 (2010) ........................................................... 6, 8, 11 People v. Gerrara, 88 A.D.3d 811 (2d Dep’t 2011) .................................................. 6 People v. Hameed, 88 N.Y.2d 232 (1996) ................................................................. 6 People v. Kahley, 105 A.D.3d 1322 (4th Dep’t 2013) ............................................14 People v. Kisoon, 8 N.Y.3d 129 (2007) ..................................................................... 6 People v. Lockley, 84 A.D. 836 (2d Dep’t 2011)....................................................... 7 People v. Miller, 39 N.Y.2d 543(1976) ...................................................... 18, 20, 22 People v. O’Rama, 78 N.Y.2d 270 (1991) ....................................................... passim People v. Ochoa, 14 N.Y.3d 180 (2010) ................................................................... 6 People v. Owens, 158 A.D.2d 478 (2d Dep’t 1990) ................................................21 People v. Powell, 101 A.D.3d 756 (2d Dep’t 2012) ......................................... 13, 14 People v. Raosto, 50 A.D.3d 508 (1st Dep’t 2008) .................................................21 People v. Steele, 168 A.D.2d 937 (4th Dep’t 1990) ................................................23 People v. Sweney, 55 A.D.3d 1350 (4th Dep’t 2008) ..............................................10 People v. Tabb, 13 N.Y.3d 852 (2009) ................................................................6, 13 People v. Velazquez, 1 N.Y.3d 44 (2003) ................................................................11 People v. Ziegler, 78 A.D.3d 545 (1st Dep’t 2010) .............................................9, 10 - iv - Statutes Crim. Proc. Law § 310.30 ................................................................................ passim Penal Law § 10.00(11) .............................................................................................19 Penal Law § 35.15(2) ...............................................................................................19 Penal Law § 120.05(2) .............................................................................................20 Penal Law § 120.10(1) .............................................................................................20 Other Authorities CJI2d[NY] Defenses – Justification – Deadly Physical Force ................................19 CJI2d[NY] Penal Law 120.05(2) .............................................................................19 PRELIMINARY STATEMENT Mr. Mendez raised two points for this appeal in his opening brief: (1) whether Justice McLaughlin committed a mode of proceedings error by failing to respond to three jury notes (Point I in Mr. Mendez’s opening brief), and (2) whether Justice McLaughlin erred in precluding Mr. Mendez from introducing evidence of the Justinianos’ prior violent acts as part of his justification defense (Point II in Mr. Mendez’s opening brief). With respect to Point I, Respondent essentially raises two arguments: (1) all three notes were ministerial, and (2) the presumption of regularity applies. With respect to Point II, while Respondent raises some concerns about Mr. Mendez’s offer of proof and the preservation of certain arguments, Respondent primarily contends that Justice McLaughlin admitted a sufficient amount of evidence. As detailed in Mr. Mendez’s opening brief, and as discussed more fully herein, each of these arguments fail. All three of the jury notes were substantive communications, and Justice McLaughlin’s failure to create any record of his handling of these notes is a mode of proceedings error. Similarly, Mr. Mendez’s offer of proof regarding the Justinianos’ prior violent acts was never questioned, and the sparse, sanitized information that Justice McLaughlin admitted was insufficient to allow the jury to fully and properly consider Mr. Mendez’s justification defense. Both errors require reversal of Mr. Mendez’s conviction. - 2 - RESPONSE TO RESPONDENT’S STATEMENT OF FACTS Respondent’s 31-page 1 statement of facts fails to address the serious deficiencies in the prosecution’s case, presumably in an effort to stray this Court’s attention away from the legal issues raised in this appeal. While Respondent asserts that the prosecution’s “evidence at trial [was] powerful[] and convincing[]” and “foreclosed any possibility that [Mr. Mendez] was justified,” Respondent’s Brief (hereinafter “Resp. Br.”) at 24, the reality is that the prosecution’s case was so rife with inaccuracies and inconsistencies that Mr. Mendez was only convicted of a lesser-included offense with respect to one count (as to Jason Justiniano), and was acquitted of the second count (as to Edwin Justiniano). While Mr. Mendez discussed the glaring inconsistencies in the prosecution’s case at length in his opening brief, see Mendez Opening Br. at 10-13, the following are but a few of the defects that Respondent glosses over or ignores: • Where was Jason Justiniano when he was struck with the meat tenderizer? In order to make its witnesses appear to corroborate the Justinianos’ story that Mr. Mendez returned with the meat tenderizer minutes later and further down the street, Respondent claims that the food vendor testified that someone took the tenderizer from his cart and “ran off with it.” Resp. Br. at 8. However, Respondent omits that the vendor further testified that a group of people were fighting near his food cart, e.g., Tr. 381:1-382:4, and that the person who took the meat tenderizer “went ten feet and then hit the man” with the meat tenderizer, Tr. 375:6-11. Only by leaving out salient information can 1 Respondent’s Introduction and Point I amount to little more than commentary on its statement of facts. Accordingly, Mr. Mendez considers them to be essentially part of Respondent’s statement of facts and responds to them as such. - 3 - Respondent argue that the street vendor corroborated the Justinianos’ testimony. • Did Mr. Mendez ever strike Edwin Justiniano with the meat tenderizer? Respondent argues that Mr. Mendez “struck Edwin [Justiniano] on his neck with the meat tenderizer.” Resp. Br. at 25. However, 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. Moreover, as mentioned supra, Mr. Mendez was acquitted of the count related to Edwin Justiniano. Thus, although, Respondent portrays this incident as “fact,” the jury apparently found otherwise. • How much did Jason Justiniano drink that night? While Respondent acknowledges that Jason Justiniano drank, smoked marijuana, and ingested ecstasy that night, Respondent argues that he was unaffected at the time of the fight. Resp. Br. at 5, 10 n.10. Respondent ignores that the prosecution’s own expert witness (Dr. Russell, Jason Justiniano’s physician that night) testified that 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). See Tr. 553:21-554:16. • How much did Jennifer Justiniano drink that night? Respondent acknowledges that Jennifer Justiniano “had shots of Hennessey and shared a marijuana cigar” with her siblings late in the evening on January 22, 2011, and claims she did not drink at Club Escuelita. Resp. Br. at 5. However, Respondent ignores the fact that Stephanie Nazario testified that Jennifer Justiniano had just had oral surgery and was not drinking that night. Tr. 247:5-6. Respondent also ignores the fact that, according to all four Justiniano siblings, Jennifer Justiniano vomited after leaving Club Escuelita. Tr. 128:9-11; 225:20; 394:8-9; 459:16-17. Respondent attempts to explain away these inaccuracies by describing them as “negligible differences in some minor aspects” of the prosecution’s case that “likely demonstrated to the jury that these witnesses were truthfully recounting the - 4 - events in question.” Resp. Br. at 30. Respondent is incorrect. Whether one complaining witness in an assault case was actually struck with an instrument, that a disinterested witness corroborated Mr. Mendez’s account and provided testimony completely at odds with the complainants’ accounts, and the extreme intoxication of at least one of the complaining witnesses, could not be further from “negligible.” Respondent also goes so far as to allege that Mr. Mendez “does not wholeheartedly endorse the version of events he testified to at trial” because he acknowledged in his opening brief that his evidence “was called into question at various points.” Resp. Br. at 28 (citing Mendez Opening Br. at 40). The idea that acknowledging cross-examination and demonstrating candor with the facts evinces a lack of belief in one’s case is extreme and unwarranted. Moreover, as with the purported strength of the prosecution’s case, Respondent can only make this argument by selective parsing of Mr. Mendez’s opening brief. The full quote reads: “While the defense’s evidence was called into question at various points, the prosecution’s witnesses told widely inconsistent stories.” Mr. Mendez was forthright in detailing every witness’s testimony and the attempted impeachment by both sides. In contrast, Respondent paints its case as strong by failing to acknowledge the severe problems with its witnesses or the fact that the jury largely rejected its evidence. - 5 - ARGUMENT POINT I CONTRARY TO RESPONDENT’S ARGUMENTS, 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). Respondent concedes that Justice McLaughlin did not follow the procedure enumerated in Crim. Proc. Law § 310.30 and People v. O’Rama, 78 N.Y.2d 270 (1991), for Court Exhibits 10-12. See Resp. Br. at 56. Moreover, Respondent concedes that, if this Court determines that any of Court Exhibits 10-12 is substantive rather than ministerial, Mr. Mendez’s conviction cannot be affirmed, and that at a minimum a reconstruction hearing is necessary. See id. at 66-67. Instead, Respondent argues that (1) all three notes were ministerial, see id. at 59-62, and (2) the presumption of regularity explains Justice McLaughlin’s handling of the notes, see id. at 63-66. Both of these arguments fail, and Mr. Mendez’s conviction must be reversed. A. Because Substantive Action Was Required in Response to the Jury Notes, for which Counsel Could Have Provided Meaningful Input, the Notes Were Not Ministerial Requests. 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, - 6 - including instances where input from counsel is unnecessary. For example, jury notes that are requests for discrete pieces of evidence, as well as requests that are unrelated to substance of the jury’s verdict, have repeatedly been found to be ministerial. See, e.g., People v. Ochoa, 14 N.Y.3d 180, 181 (2010) (finding note concerning foreperson’s nervousness about reading verdict in open court to be ministerial); People v. Hameed, 88 N.Y.2d 232, 233 (1996) (finding trial judge’s response to inquiry about details of sequestration requirement to be ministerial); People v. Gerrara, 88 A.D.3d 811, 812 (2d Dep’t 2011) (finding “requests to view evidence, read-backs of testimony, and/or read-backs of the trial court’s jury charge” to be ministerial). In contrast, inquiries evincing confusion about the court’s instructions, what evidence was admitted, or how to weigh the evidence are quintessentially related to the substance of the verdict and require the trial judge to follow the procedures mandated under Crim. Proc. Law § 310.30 and O’Rama. See, e.g., People v. Cruz, 14 N.Y.3d 814 (2010) (finding mode of proceedings error for improper handling of note requesting written statement used during trial but not admitted in evidence); People v. Tabb, 13 N.Y.3d 852, 852 (2009) (finding mode of proceedings error for failure to disclose on the record note requesting definition of self-defense); People v. Kisoon, 8 N.Y.3d 129, 134-35 (2007) (finding mode of proceedings error for failure to disclose full substance of note indicating lack of unanimous jury vote). - 7 - 1. Court Exhibits 10 and 12 Were Not Ministerial Requests. Contrary to Respondent’s argument, Court Exhibits 10 and 12 were not ministerial requests. Court Exhibits 10 and 12 requested the transcripts of recorded phone calls that were played to the jury during the prosecution’s case-in-chief. There is no dispute that these transcripts were not admitted into evidence. Respondent first argues that, because the transcripts were not admitted into evidence, Justice McLaughlin “did not need input from [counsel] to carry out what would have been [his] ministerial function in explaining to the jurors that they would not be allowed to bring the transcripts into the jury room.” Resp. Br. at 60- 61. At a minimum, this argument ignores the fact that the procedure mandated by Crim. Proc. Law § 310.30 and O’Rama involves more than seeking input from counsel. See Mendez Opening Br. at 21-22 (citing People v. Lockley, 84 A.D. 836, 837 (2d Dep’t 2011)) (noting proper procedure, including “afford[ing] [counsel] a full opportunity to suggest appropriate responses”). Moreover, the fact that the jury twice requested the transcripts (in Court Exhibits 10 and 12) belies the idea that Justice McLaughlin had given the jurors such an explanation. Respondent also argues that, during the charge, Justice McLaughlin had already instructed the jury that they could not have the transcripts inside the jury room. See Resp. Br. at 61. Thus, Respondent insinuates that because Justice McLaughlin had already made an on-point comment to the jury, such a comment - 8 - somehow automatically makes the notes ministerial. Not only does Respondent fail to cite any authority for such a proposition, it is indeed contrary to the plain language of Crim. Proc. Law § 310.30 and O’Rama. Finally, Respondent argues that because there is no dispute that the transcripts were not evidence, the jury’s requests in Court Exhibits 10 and 12 are necessarily ministerial. Resp. Br. at 61. However, Respondent cites no authority for the entirely untenable idea that any request for material that is not in evidence necessarily is a ministerial request. Indeed, such a claim has been rejected by the Court of Appeals. See People v. Cruz, 14 N.Y.3d 814 (2010) (reversing conviction where the jury requested an item that was not in evidence, judge did not recall whether he received the note, which was marked as a court exhibit, and record was unclear whether the jury received the exhibit). 2 Moreover, Respondent disregards the fact that this was not a mere request for an item not admitted into evidence and thus unavailable to the jury. As Justice McLaughlin indicated to the jury (and Respondent acknowledges), the jury could have gone back into the courtroom, seen the transcripts, and listened to the recorded calls again, if they wished to do so. See Resp. Br. at 53 (citing Tr. 869:9- 11). The fact that Court Exhibits 10 and 12 at a minimum created an ambiguity 2 At a reconstruction hearing, the trial judge in Cruz stated that “had he been told that the jury . . . requested a court exhibit not in evidence, he would have reconvened the proceeding in the presence of defendant.” Cruz, 14 N.Y.3d at 816. Notably, there is no record of the parties reconvening here. - 9 - about whether the jury wished to do so required Justice McLaughlin to inform counsel of Court Exhibits 10 and 12 and provide an opportunity for counsel to provide input into his response. Cf. People v. Ziegler, 78 A.D.3d 545, 546 (1st Dep’t 2010) (“[T]here were no ambiguities requiring the court to make inquiries of the jury or take input from counsel.”). Such input might include, for example, whether Justice McLaughlin should simply tell the jury that the transcripts were not in evidence, offer to let the jury come back into the courtroom to hear the recorded calls and see the transcripts, or instead seek clarification about the nature of the request. In addition, if the tapes were to be played, counsel would have requested that the jury be admonished not to speculate about the uncharged crimes described in the telephone calls. Especially because this evidence was unfavorable to the defense, counsel’s input was critical. 2. Court Exhibit 11 Was Not A Ministerial Request. Contrary to Respondent’s contention, Court Exhibit 11 was not “essentially a request for items that were not admitted in evidence at trial.” Resp. Br. at 62. The language of Court Exhibit 11 itself clearly demonstrates that the jury’s request was indeed broader than that. The jury asked “WERE there 911 calls related to [the] incident that we did not [hear?]. Can we hear them or have them read[?]” Court Exhibit 11 (emphasis in original). This request suggests that the jury was likely speculating that additional evidence may have been suppressed or otherwise - 10 - not presented to them at trial. Such a note required Justice McLaughlin to admonish the jury not to speculate about the existence of additional evidence. Cf. People v. Sweney, 55 A.D.3d 1350, 1352 (4th Dep’t 2008) (“We conclude that the court properly instructed the jury that it was not to engage in speculation with respect to evidence that was not presented at trial.”). Respondent relies upon People v. Ziegler, 78 A.D. 545 (1st Dep’t 2010), to argue that Court Exhibit 11 was a ministerial request. In Ziegler, however, the notes at issue requested “certain exhibits” and “an additional requested item [that] was not in evidence.” 78 A.D.3d at 546. In this case, Court Exhibit 11 did not request a specific additional item; rather, it asked generally about the availability of other information that the jury might find useful in its deliberations. Moreover, the fact that Court Exhibit 11 created, at a minimum, an ambiguity about whether the jury was engaging in such speculation required Justice McLaughlin to inform counsel of Court Exhibit 11 and provide an opportunity for defense counsel to provide input into his response. Cf. Ziegler, 78 A.D.3d at 546 (“[T]here were no ambiguities requiring the court to make inquiries of the jury or take input from counsel.”). Such input might include, for example, the nature and strength of the admonishment the jury should have been given, as well as an instruction that, while the jurors could not speculate about matters outside of the record, they could - 11 - consider the lack of evidence in determining if the prosecution had met its burden of proof. B. Respondent’s Argument Regarding the Presumption of Regularity Is Inherently Illogical. Respondent also argues that Justice McLaughlin’s failure to properly respond to the jury’s last three notes is saved by the presumption of regularity. See Resp. Br. at 63-66. While such a presumption of regularity does attach to judicial proceedings, People v. Velazquez, 1 N.Y.3d 44, 48 (2003), a defendant can rebut such a presumption by “substantial evidence,” such as by showing “that there was a significant, unexplained irregularity in the proceedings.” Cruz, 14 N.Y.3d at 816 (2010). Here, there was just such an irregularity. Respondent reasons that, because Justice McLaughlin properly responded to the jury’s earlier notes, he must have responded properly to the last three. See People’s Br. at 63-64. In fact, the opposite is true. While Respondent claims that the last three notes “obviously” must have been discussed off the record, it admits that Justice McLaughlin made a record of other unquestionably ministerial notes. 3 Resp. Br. at 64 (discussing how, with respect to Court Exhibit 6, “the decision to 3 Moreover, Respondent concludes, without any support, that Justice McLaughlin did, in fact, respond to the last three jury notes. E.g., Resp. Br. at 64 (“[T]here is every reason to conclude that the trial court responded to the three … jury notes in question.”). There is nothing in the record to suggest that a response was ever given; moreover, the fact that the jury requested the transcripts in two separate notes (Court Exhibits 10 and 12) suggests that Justice McLaughlin never responded to the jury’s first request for the transcripts. - 12 - send those particular exhibits into the jury room must have occurred in an off-the- record colloquy”). This suggests that, unlike with the earlier notes, the later notes were not properly addressed. Respondent’s argument regarding the presumption of regularity is inherently illogical. Respondent provides no plausible explanation for why Justice McLaughlin made a record of certain ministerial notes (e.g., Court Exhibit 6) but not others that Respondent argues are ministerial (i.e., Court Exhibits 10-12), other than fiat statements that Justice McLaughlin responded to them “in proper fashion,” Resp. Br. at 64, including through off-the-record discussions that are nowhere referenced in the record. If Justice McLaughlin had not made a record of the earlier, indisputably ministerial notes, Respondent’s argument would make sense, as Justice McLaughlin would have made a proper record of, and response to, all the notes that (in Respondent’s view) were substantive, whereas the record would not reflect the handling of any of the notes that (again, in Respondent’s view) were ministerial. However, the fact that Justice McLaughlin made a record of certain unquestionably substantive notes (e.g., Court Exhibit 9, in which the jury requested to be re-instructed on justification) and certain unquestionably - 13 - ministerial notes (e.g., Court Exhibit 6) but did not make a record of Court Exhibits 10-12 defies any logical presumption of regularity. 4 C. Mr. Mendez’s Conviction Must Be Reversed Because Court Exhibits 10-12 Were Substantive Requests to which Justice McLaughlin Failed to Properly Respond. While the last three jury notes were marked as Court Exhibits 10-12, nothing further was done with them. Respondent concedes (as it must) that these notes were never read into the record or discussed with counsel on the record, Justice McLaughlin did not inform counsel on the record of any response he intended to give, and the notes were never read in open court. See Resp. Br. at 56; see also 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.”); 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 4 The credibility of Respondent’s argument is even further undermined by its failure to cite Cruz anywhere in its brief, much less respond to (1) the Fourth Department’s underlying determination in that case that a reconstruction hearing was necessary where there was no record response to a jury note requesting an exhibit that was not in evidence, see 42 A.D.3d 901, or (2) the Court of Appeals’ conclusion that “a significant, unexplained irregularity in the proceedings” is sufficient to overcome the presumption of regularity, 14 N.Y.3d at 816. - 14 - preservation requirements and requires reversal as a matter of law.” People v. Caban, 78 A.D.3d 403, 404 (1st Dep’t 2010). Respondent argues that, “in the event this Court finds that any of the three jury notes at issue were substantive, it should … remand for a reconstruction hearing.” Resp. Br. at 67. In doing so, Respondent suggests that this Court should follow the Fourth Department’s reasoning in People v. Kahley, 105 A.D.3d 1322 (4th Dep’t 2013). In Kahley, the Fourth Department remanded for a reconstruction hearing because it could not “be said with certainty whether defense counsel received … notice [of the note] off the record.” 105 A.D.3d at 1325. There was no dispute in Kahley that the trial judge had responded to the jury’s requests for readbacks of testimony. In this case, however, there is no such clarity; the reconstruction hearing would have to demonstrate that Justice McLaughlin performed the entirety of the procedures mandated by Crim. Proc. Law § 310.30 and O’Rama off the record. The requirement that these procedures take place on the record is not only to ensure the defendant receives adequate notice and ability to participate in the proceedings, but is also “designed to ‘ensure a clear and complete record, thereby facilitating adequate and fair appellate review.’” Powell, 101 A.D.3d at 759. Essentially, Respondent’s argument presumes that there were substantial, untranscribed proceedings that took place in open court with the prosecution, the - 15 - defendant, defense counsel, and the jury all present. After all, any reconstruction hearing would have to show that Justice McLaughlin read all three notes into the record, discussed with counsel the responses he intended to give, brought the jury back into the courtroom, read the notes to the jury in open court, and – most critically – meaningfully responded to the jury’s requests. The allegation of such substantial unrecorded proceedings strains credulity and demonstrates that a reconstruction hearing could not possibly show that Justice McLaughlin fulfilled his core responsibilities under Crim. Proc. Law § 310.30 and O’Rama. Therefore, a reconstruction hearing is not proper in this case, and because Justice McLaughlin committed a mode of proceedings error by failing to fulfill his core responsibilities under Crim. Proc. Law § 310.30 and O’Rama, this Court must reverse Mr. Mendez’s conviction. - 16 - 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. Respondent concedes (as it must) that Mr. Mendez was legally entitled to introduce evidence of the Justinianos’ prior violent acts as part of his defense. See generally Resp. Br. at 39-42. Respondent contends, however, that Justice McLaughlin properly limited the scope of such evidence for two reasons: (1) Mr. Mendez “had not made a specific or sufficient offer of proof that any additional prior acts of violence existed,” and (2) Mr. Mendez failed to show that such violent acts “were reasonably related to the defense raised by” Mr. Mendez. Resp. Br. at 31. Both of these arguments fail, and contrary to Respondent’s claims, Justice McLaughlin erred by unreasonably denying the defense sufficient latitude to elicit evidence of the Justinianos’ prior acts of violence committed at the very scene where the incident at issue here arose. A. Mr. Mendez’s Offers of Proof Were Never Legitimately Questioned. Respondent’s first argument – that Mr. Mendez’s offers of proof were insufficient – is expressly contrary to the record. Mr. Mendez clearly proffered his personal knowledge of prior violent acts that the Justinianos had committed in Club Escuelita during his employment there. See, e.g., Tr. at 705:19-706:6; - 17 - 740:22-741:5. This knowledge was corroborated by defense counsel’s conversation Jennifer and Edwin Justiniano, during which Jennifer Justiniano said that she “love[d] to fight,” Tr. 168:4, 423:22-423:2, and at least two of the Justinianos confirmed that they knew Mr. Mendez. Tr. 164:14-165:1, 168:3-4, 414:7-20, 707:8-709:11; see also Tr. 415:2-12, 455:15-20. In addition, both Jennifer and Jason Justiniano admitted to being in at least one fight at Club Escuelita before the court precluded further questioning. Tr. 164:9-165:1, 414:7- 20. As discussed in detail in Mr. Mendez’s opening brief, while Justice McLaughlin’s justification for precluding the introduction of evidence of the Justinianos’ prior violent acts changed throughout Mr. Mendez’s trial, see Mendez Opening Br. at 14-17, in none of the instances in which Justice McLaughlin discussed the issue with counsel did he conclude that Mr. Mendez’s offer of proof was insufficient. The only instance where Mr. Mendez’s offer of proof was arguably questioned was when Justice McLaughlin said to Mr. Mendez’s counsel, “I don’t trust your client.” Tr. 169:1-2. Instead, Justice McLaughlin precluded the introduction of evidence of the Justinianos’ prior violent acts for an ever-changing (but legally incorrect) set of reasons, including that (1) Mr. Mendez did not make a required showing of the Justinianos’ general reputation for violence, (2) according to Mr. Mendez’s - 18 - testimony, his striking of Jason Justiniano was an involuntary action, and (3) only evidence of prior violent acts involving the use of deadly physical force was admissible. See Opening Br. at 34-38. 5 B. The Justinianos’ Prior Violent Acts At Issue Satisfy the “Quality” Requirement Under Miller. As Respondent notes, a defendant asserting a justification defense may introduce evidence of the victim’s prior acts of violence if the acts “‘relate reasonably, in time and quality’ to the ‘defense raised by the defendant.’” Resp. Br. at 47 (citing People v. Miller, 39 N.Y.2d 543, 552 (1976)). Respondent contends, however, that the Justinianos’ prior violent acts fail to meet this standard because none of the Justinianos’ prior violent acts were shown to involve the use of “weapons” and thus did not involve the use of deadly physical force. Resp. Br. at 45-46. First, Respondent’s argument rests on the assumption that the use of a weapon is necessary to inflict deadly physical force, which is legally incorrect. See, e.g., Matter of Y.K., 87 N.Y.2d 430, 434 (1996) (finding use of deadly physical force justified when “complainant and others in the group punched and kicked [defendant’s] face, head and body” where no weapons were used); see also 5 As discussed at length in Mr. Mendez’s opening brief, each of these reasons was legally incorrect. See Mendez Opening Br. at 34-38. Respondent does not meaningfully refute those arguments but instead halfheartedly reasons that Mr. Mendez “misinterpret[s] … the court’s analysis” or “makes too much of the court’s remark.” Resp. Br. at 49. - 19 - CJI2d[NY] Defenses – Justification – Deadly Physical Force (defining “deadly physical force” without any reference to weapons) (citing Penal Law § 10.00(11)). Moreover, Mr. Mendez did demonstrate that, in at least one instance, Jennifer Justiniano performed a violent act that may have involved the use of a dangerous instrument. See Tr. 741:4-5 (Mr. Mendez testifying that Jennifer Justiniano “threw a shot glass”); see also People v. Barker, 223 A.D.2d 899, 900 (3d Dep’t 1996) (thrown rock found to be dangerous instrument); CJI2d[NY] Penal Law 120.05(2) (defining “dangerous instrument” as “any instrument, article or substance … which, under the circumstances in which it is used … is readily capable of causing death or other serious physical injury”). In addition, Respondent’s argument (and portions of Justice McLaughlin’s reasoning) rest on the assumption that Mr. Mendez used deadly physical force during his altercation with Jason Justiniano. First, Justice McLaughlin erred in determining that Mr. Mendez’s act constituted deadly physical force. Tr. 742:14- 16 (“What we’re talking about here is deadly physical force in response to deadly physical force.”). Deadly physical force is an express element of the first-degree assault charge and the defense of justification, see Penal Law §§ 35.15(2), 120.10(1), and was thus a determination for the jury to make, not Justice McLaughlin. Moreover, in acquitting Mr. Mendez of first-degree assault, as a completed or even an attempted crime, the jury strongly signaled that it believed - 20 - neither that Mr. Mendez intended to inflict serious physical injury nor that such an injury was, in fact, inflicted. Compare Penal Law § 120.10(1) with Penal Law § 120.05(2). Respondent argues that Mr. Mendez failed to show that the Justinianos’ prior violent acts were of “such a nature or quality” that Mr. Mendez was justified in his actions. Resp. Br. at 44-46. As Mr. Mendez demonstrated at trial, however, the prior acts took place during Mr. Mendez’s employment at Club Escuelita (the club the Justinianos visited that night, and very near to which the fight occurred). Tr. 705:19-707:22; see also, e.g., 415:7-9, 488:22-24. Moreover, the Justinianos admitted that they would engage in fights for each other, see, e.g., Tr. 164:22-23; thus, Mr. Mendez had every reason to believe that, if he had a fight with one of the siblings, they would all attack him. 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 with Mr. Mendez. As Respondent acknowledges, in Miller, the evidence of the victim’s prior violent acts “was all the more compelling given that their mother was the ‘source of her anger’ on the day of the crime.” Resp. Br. at 48 (citing Miller, 39 N.Y.2d at 553- 54). Thus, under Miller, Mr. Mendez adequately demonstrated that the - 21 - Justinianos’ prior violent acts were sufficiently related in quality to the situation confronting him on the night of January 22, 2011. C. Justice McLaughlin’s Preclusion of this Evidence Was Not Harmless. Finally, Respondent contends that Justice McLaughlin’s preclusion of evidence concerning the Justinianos’ prior violent acts was harmless. Resp. Br. at 50-51. However, if there are “close[] … factual questions with respect to the defense of justification,” then such an 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”). As detailed more fully in Mr. Mendez’s opening brief, the prosecution’s evidence at trial was far from overwhelming. The prosecution’s witnesses told very inconsistent stories at trial, including on fundamental details of the events of the night in question, and the jury’s deliberation process was lengthy and involved a number of evidentiary requests and a supplemental instruction. Tellingly, in the end, Mr. Mendez was acquitted of the count with respect to Edwin Justiniano because the jury rejected the prosecution’s evidence, and Mr. Mendez was only convicted of a lesser-included offense with respect to Jason Justiniano. - 22 - This excluded evidence was highly material to Mr. Mendez’s justification defense. See Miller, 39 N.Y.2d at 551(1976) (“[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.”). Justice McLaughlin only admitted evidence about one of the Justinianos’ prior fights, when by their own admission they regularly engaged in bar fights. Thus, Justice McLaughlin prevented Mr. Mendez from providing the jury with an accurate depiction of the Justinianos’ truly violent nature, and instead only permitted sanitized evidence about a single incident. 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. Therefore, Respondent’s arguments fail, and because Justice McLaughlin improperly precluded Mr. Mendez from introducing evidence of the Justinianos’ prior violent acts (in support of his justification defense, to impeach the Justinianos’ credibility, and as part of his constitutional right to present a complete defense), Mr. Mendez’s conviction must be reversed for this reason as well. 6 6 Respondent argues that Mr. Mendez did not preserve the issues of whether he was entitled to introduce evidence of the Justinianos’ prior fights to impeach their credibility or as part of his constitutional right to present a complete defense. Resp. Br. at 40. However, Mr. Mendez’s - 23 - CONCLUSION For the foregoing reasons and for the reasons set forth in his opening brief, Edwin Mendez’s conviction must be reversed and the indictment dismissed. Dated: New York, NY February 7, 2014 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 By: _________________________________ C. Austin Ginnings 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 counsel expressly sought to question Jason Justiniano about his prior fights at Club Escuelita because they were prior bad acts (Tr. 168:21-25) (to which Justice McLaughlin’s response was “I don’t trust your client” (Tr. 169:2)). See, e.g., People v. Steele, 168 A.D.2d 937, 938 (4th Dep’t 1990) (“[A] witness may be questioned about prior bad acts which bear upon his credibility.”). Moreover, because the evidence of the Justinianos’ prior fights related to Mr. Mendez’s justification defense, the fact that such exclusion impairs his constitutional right to present a complete defense is inherent. - 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 PRINTING SPECIFICATIONS STATEMENT 1. The following statement is made in accordance with First Department Rule 600.10 (amended 2003). 2. Mr. Mendez’s reply 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 5,455, as calculated by the word processing system, and is 23 pages. 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. AFFIRMATION OF SERVICE BY MAIL Indictment No. 351/2011 C. AUSTIN GINNINGS, ESQ., an attorney duly admitted to practice in the State of New York, hereby affirms the following under penalty of perjury: 1. I am an associate at Fitzpatrick, Cella, Harper & Scinto and am working in conjunction with the Office of the Appellate Defender, which has been assigned to represent the defendant-appellant in the above-captioned case. 2. On February 7, 2014, I served a Reply Brief on the attorney for the respondent, The People of the State of New York, at the Office of the District Attorney, New York County, Appeals Bureau, One Hogan Place, New York, New York 10013, by mailing said copies in a depository designated by the United States Postal Service. Respondent has consented to service by mail on the date of filing. Dated: New York, NY February 7, 2014 ______________________________ C. AUSTIN GINNINGS, ESQ.