The People, Respondent,v.Selbin Martinez, Appellant.BriefN.Y.January 16, 2014To be argued by: RAHUL SHARMA COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SELBIN MARTINEZ, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant JOSEPH M. NURSEY, ESQ. Supervising Attorney By: RAHUL SHARMA, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Tel: (212) 402-4100 Fax: (212) 402-4199 rsharma@appellatedefender.org June 27, 2013 ii TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii ARGUMENT I. RESPONDENT’S ARGUMENTS FOR AFFIRMING THE DENIAL OF A PERMISSIVE ADVERSE INFERENCE CHARGE ARE MERITLESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Respondent’s Preservation Claims Fail, Where the Basis of the Defense’s Adverse Inference Request Was Obvious. . . . . . . . 1 B. Respondent Fails to Address Our Argument for Why CPL 240.75 Does Not Apply, and Conspicuously Ignores that “Reasonable Possibility” Means “Harmless Beyond a Reasonable Doubt.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C. Respondent’s Harmless Error Arguments Rely Upon Dubious Assumptions that this Court’s Precedents Disallow, and that the Record Itself Negates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. Respondent Misrepresents the Record in Attempting to Rehabilitate the Credibility of the Main Complainant. . . . . . . 9 II. IN ATTEMPTING TO JUSTIFY THE TRIAL COURT’S IDENTIFICATION CHARGE, RESPONDENT IGNORES THAT IRIZARRY NEVER IDENTIFIED THE SMALL PORTION THAT HE SAW OF AN ASSAILANT’S FACE AS SELBIN’S. . . . . . . . . 12 III. RESPONDENT FAILS TO REHABILITATE THE CREDIBILITY OF THE MAIN COMPLAINANT, AND TO ANALOGIZE HIS UNRELIABLE IDENTIFICATION OF SELBIN TO VARIOUS APPELLATE DIVISION PRECEDENTS. . . . . . . . . . . . . . . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 iii TABLE OF AUTHORITIES CPL 240.75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 People v. Handy, 20 N.Y.3d 663 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8 People v. Joseph, 86 N.Y.2d 565 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4-7, 9 People v. Kelly, 88 N.Y.2d 248 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Lee, 221 A.D.2d 473 (2d Dept. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Lyons, 197 A.D.2d 708 (2d Dept. 1993) . . . . . . . . . . . . . . . . . . . . . . . . 15 People v. Malizia, 62 N.Y.2d 755 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Martinez, 71 N.Y.2d 937 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 People v. Monette, 70 A.D.3d 1186 (3d Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . 15 People v. Payne, 3 N.Y.3d 266 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 People v. Poole, 48 N.Y.2d 144 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 People v. Vidal, 26 N.Y.2d 249 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 People v. Vilardi, 76 N.Y.2d 67 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Wallace, 76 N.Y.2d 953 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Williams, 5 N.Y.3d 732 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 Respondent also writes: “Nor did defendant voice his current constitutional claims to the court below, rendering them unpreserved as well.” Resp. Br. 18 (citations omitted). We cannot respond to this, as we have not raised any constitutional claims related to this issue. 1 ARGUMENT I. RESPONDENT’S ARGUMENTS FOR AFFIRMING THE DENIAL OF A PERMISSIVE ADVERSE INFERENCE CHARGE ARE MERITLESS. A. Respondent’s Preservation Claims Fail, Where the Basis of the Defense’s Adverse Inference Request Was Obvious. In the opening brief, we argued that, because the State failed to preserve Officer Franco’s handwritten complaint report (“scratch 61”), defense counsel was unable to “fully verify – and cross-examine – the recollections of the main prosecution witnesses.” App. Br. 19. We argued that, because of this inability to verify and cross-examine, the trial court was wrong to deny the defense’s request for a permissive adverse inference instruction about the contents of the scratch 61. Id. at 19-20. Respondent counters that trial counsel’s permissive adverse inference request failed to preserve the argument that Mr. Martinez was “denied the opportunity for full cross-examination.” Resp. Br. 18.1 Respondent is wrong. An issue is preserved as long as the trial court “had a full opportunity to review the issue in question.” People v. Payne, 3 N.Y.3d 266, 273 (2004). A trial court receives such an opportunity whenever the basis for an objection or request is “obvious.” People v. Williams, 5 N.Y.3d 732, 736 (2005) (Smith, J., concurring) (citing Payne and People v. Vidal, 26 N.Y.2d 249, 254 2 (1970)). That was the case here, as “the only purpose of the Rosario rule is to afford the defendant a fair opportunity to cross-examine the People’s witnesses at trial.” People v. Poole, 48 N.Y.2d 144, 148-49 (1979) (emphasis added); see also People v. Kelly, 88 N.Y.2d 248, 252 (1996) (referring to Rosario materials as “potential cross-examination materials”). Besides the possibility that the scratch 61 would have been helpful in cross-examination, there was no reason to request a permissive adverse inference charge. The basis for the request was therefore obvious and preserved. That finding would be consistent with People v. Joseph, 86 N.Y.2d 565 (1995), where this Court overturned the denial of an adverse inference charge for the loss of Rosario material – because the material would have been “useful in cross-examination,” id. at 570 – without stating that trial counsel did anything more than “ask[]” for the charge. Id. at 568. The opening brief also discussed how the scratch 61 might have assisted the defense’s alternative theories that either Selbin was misidentified or whatever occurred was not an attempted robbery. App. Br. 29; see also id. at 12 (noting that Selbin was charged with attempted assault). For example, if, according to the scratch 61, the main complainant, Armando Irizarry, told the police that neither of the assailants said anything, that would undermine his testimony at trial that one of the assailants said, “Give it up.” Id. Alternatively, if, according to the scratch 61, Irizarry stated that he once had a conflict with one or both of the assailants, that 3 would bolster the defense’s theory that “Give it up” – even assuming one of the assailants said it – referred to something other than property. Id. Respondent suggests that we cannot argue the first possibility – that the scratch 61 might have stated that neither of the assailants said anything – because “[d]efense counsel never argued on summation that the phrase ‘give it up’ was never uttered.” Resp. Br. 23. In making this argument, Respondent ignores that lawyers tailor their summations to the evidence that is available, and to the trial court’s evidentiary rulings. If the scratch 61 had been preserved and stated that neither of the assailants said anything, Mr. Martinez’s lawyer almost certainly would have argued that “give it up” was never uttered. And if the trial court had not improperly denied the request for a permissive adverse inference charge, the lawyer would have focused on the absence of the scratch 61 in summation, urging the jury to believe that the document would have only further impeached the complainants’ testimony. B. Respondent Fails to Address Our Argument for Why CPL 240.75 Does Not Apply, and Conspicuously Ignores that “Reasonable Possibility” Means “Harmless Beyond a Reasonable Doubt.” Respondent claims that we “attempt[] to create” an “automatic reversal” rule whenever a court declines to give an adverse inference instruction following a Rosario violation. Resp. Br. 20 (citing App. Br. 23). It is unclear which statement 4 on page 23 of the opening brief led Respondent to this conclusion. In any event, Respondent is wrong. As the brief acknowledges, reversal is required when a “defendant has been prejudiced” by a Rosario violation and the trial court fails to impose even the limited sanction of a permissive adverse inference charge. App. Br. 21-22 (citations omitted). Here, Mr. Martinez was prejudiced by the failure to preserve the scratch 61, as that report likely would have further impeached the complainants’ credibility, which was already suspect thanks to the preserved Rosario material. See App. Br. 28-29. According to Respondent, the enactment of CPL 240.75 abrogated People v. Joseph, Resp. Br. 26-27, in which this Court reversed a trial court for failing to impose the “limited sanction” of an adverse inference charge for the loss of Rosario material, even though the defendant could make only a “conjectural showing” of prejudice. 86 N.Y.2d at 572. Respondent makes the same argument about People v. Martinez, Resp. Br. at 26, in which this Court held that an adverse inference instruction was “an appropriate sanction” for the loss of “police officer notes that may have once existed,” even though the possibility of prejudice to the defendant was “remote.” Joseph, 86 N.Y.2d at 572 (discussing Martinez, 71 N.Y.2d 937 (1988)). According to Respondent, following the enactment of CPL 240.75, “the burden that defendant must shoulder is much larger than the burden discussed in those cases.” Resp. Br. 27. 5 As noted in the opening brief, see App. Br. 22-23, which Respondent fails to address, CPL 240.75 does not apply to this appeal. According to the text of the statute, before an appellate court reverses a defendant’s conviction for the failure to disclose Rosario material, it must find a “reasonable possibility that the non- disclosure materially contributed to the result of the trial.” CPL 240.75. The statute would surely apply if we were seeking reversal because of the non- disclosure of Rosario material. But the statute imposes no standard on an appellate court’s review of the error in this case: the failure of the trial court to issue a permissive adverse inference instruction as a remedy for the loss of Rosario material. CPL 240.75 is therefore irrelevant to this appeal. Even if this Court finds that CPL 240.75 does apply, the statute’s “reasonable possibility” standard does not, as Respondent claims, impose a “larger” burden on Selbin than on the defendants in Joseph and Martinez. Resp. Br. 27. As noted in the opening brief, see App. Br. 23-24, and as Respondent conspicuously ignores, the “reasonable possibility” standard is met if non- disclosure of Rosario material was not “harmless beyond a reasonable doubt.” People v. Malizia, 62 N.Y.2d 755, 757 (1984). Applying the “reasonable possibility” standard, this Court has held in favor of defendants where “undisclosed evidence might have led to” a different outcome, People v. Vilardi, 76 N.Y.2d 67, 78 (1990) (emphasis added), and where the exculpatory nature of 6 unpreserved evidence was “merely speculative.” People v. Handy, 20 N.Y.3d 663, 669 (2013). Certainly, the unpreserved scratch 61 might have led to a different outcome, and its exculpatory nature was more than “merely speculative,” given that nearly all the preserved Rosario material showed significant changes in Armando Irizarry’s account of events between the day of the alleged incident and the day he testified. See App. Br. 26-28. Because the scratch 61 “might have provided useful additional support for the defense position,” the trial court’s “refusal to impose the limited sanction” of a permissive adverse inference charge constituted reversible error. Joseph, 86 N.Y.2d at 571-72 (emphasis added). C. Respondent’s Harmless Error Arguments Rely Upon Dubious Assumptions that this Court’s Precedents Disallow, and that the Record Itself Negates. Respondent argues that “there was no reasonable possibility of any material variance” between the scratch 61, which was lost, and the typed complaint report, which was preserved, because “the scratch 61 is merely used to type a final copy.” Resp. Br. 21. This essentially amounts to an argument that the typed complaint report is the “duplicative equivalent” of the scratch 61, in which case no sanction would be warranted for the loss of the latter. Joseph, 86 N.Y.2d at 567. A finding 7 of duplicative equivalence requires “necessary assurance that the two documents were alike is all respects.” Id. Respondent cannot provide any such assurance. Notably, Respondent can only claim that the scratch 61 is “used” in composing the typed report, Resp. Br. 21, not that it is reproduced verbatim in the typed report. And even if Respondent had made that claim, that would not be “a sufficient basis [to] infer . . . duplicative equivalence,” as “inadvertent errors, omissions and deletions can occur, giving rise to precisely the kind of discrepancies that are most useful in cross- examination.” Joseph, 86 N.Y.2d at 570 (citations omitted). In short, because “[t]here is no way to know whether” the information in the typed complaint report “matched” the information in the scratch 61, the prejudice from the loss of the scratch 61 is not “alleviate[d].” People v. Wallace, 76 N.Y.2d 953, 955 (1990). Respondent asserts another reason for this Court to find the loss of the scratch 61 harmless to Selbin’s defense: that it contained no contemporaneous notes of what happened before Selbin’s arrest. See Resp. Br. 23 (“[T]he only notes that Officer Franco took between the time that he received the radio run and the time he arrested Selbin Martinez were recorded in his memo book.”) (citing A. 202-03); see also id. at 27 (“[A]lthough the handwritten complaint report was not turned over, the defense was in possession of the only written record that Officer 8 Franco made in the immediate aftermath of interviewing the victim: the memo book.”). As with the supposed equivalence between the scratch 61 and the typed complaint report, it is impossible to know whether Officer Franco took notes only in his memo book before arresting Selbin. Officer Franco testified to that effect, but his memory was flawed. For example, although his notes following Selbin’s arrest stated that Selbin was wearing a “light blue baseball hat,” when asked whether that was the case at trial, Officer Franco answered, “No, I don’t recall that at all.” A. 204. And although those same notes stated that Selbin’s physical condition at the time of arrest was “[a]pparently normal,” A. 206, Officer Franco testified that the “first thing [he] noticed” about Selbin “was a cut on his forehead.” A. 189. Even if we did somehow know that Officer Franco took all of his contemporaneous notes in his memo book, he might have included information in the scratch 61 that he did not write down contemporaneously – for example, something the complainants said that he neglected to jot down, or his general impression of Irizarry’s demeanor. To the extent that Respondent tries to exploit any uncertainty about whether the failure to preserve the scratch 61 harmed Selbin’s defense, it bears reminding that “it was State agents who, by destroying [the evidence], created the need to speculate about its contents.” Handy, 20 N.Y.3d at 669. Because the State failed 9 to preserve the scratch 61, it should not benefit from any uncertainty about the scratch 61’s contents. Id.; see also Joseph, 86 N.Y.2d at 571 (“Since it was the conduct of the police that resulted in the loss of [evidence] and made it impossible to know whether [that evidence] was consistent with the People’s position at trial, the People cannot now be heard to complain that the defendant’s showing of prejudice is not sufficiently definite and clear.”) (citation and footnote omitted). D. Respondent Misrepresents the Record in Attempting to Rehabilitate the Credibility of the Main Complainant. Respondent unsuccessfully attempts to rehabilitate the credibility of Armando Irizarry, the main complainant. Respondent claims that Irizarry “first answered that he ‘never’ sold drugs and then immediately admitted that he had sold drugs ‘a long time ago.’” Resp. Br. 22 (citing A. 90-91) (emphasis added). In fact, Irizarry only admitted that he sold drugs after defense counsel increduously repeated the question, making it obvious that he knew Irizarry was lying: Q. You’ve sold drugs before? A. Never. Q. You’ve never sold drugs? A. I sold it, it was so long ago, sir. A. 90-91. 10 Respondent also claims that Irizarry “never acknowledged that the complaint ‘contradicted’ his testimony that defendant swung a bat at him.” Resp. Br. 22 (citing App. Br. 20). That is just wrong. Irizarry acknowledged that the complaint, which he signed after being told to make sure it was “accurate” and “complete,” A. 115, did not mention that anyone had swung a bat at him. A. 119. Irizarry then claimed that “if I forgot to tell, I was in shock,” id. – even though Officer Franco recalled that Irizarry “didn’t seem to have any trouble remembering . . . what had just happened.” A. 196. Respondent argues that Irizarry “never said anything that could be construed as” suggesting that this incident might have been drug-related. Resp. Br. 24 (responding to App. Br. 29). A perusal of the record shows otherwise. Irizarry lied that he “[n]ever” sold drugs, A. 91; admitted on cross-examination that his last drug conviction was more recent than he claimed on direct, compare A. 55 with A. 88; and denied that he ever had “a confrontation” with Selbin about his own use of drugs on Selbin’s floor. A. 90. Later, when asked whether he knew that “there’s a lot of violence potentially associated with drugs,” Irizarry responded: “Yes. I need to hold my tongue here. Yes.” A. 91-92. He then said that “someone with a bat and a gun” might engage in drug-related violence, id. – the same weapons that he claimed the assailants possessed. A. 57-58. 11 Irizarry’s evasive statements certainly suggested that this incident might have been related to some conflict he and Selbin had – possibly having to do with drugs – and not an attempted robbery. Irizarry’s characterization of the incident as an attempted robbery is even more suspect given that the other complainant, his own son, did not testify that he heard anyone say, “Give it up”; given that Irizarry affirmatively told one detective that “none of the perpetrators said anything” to him, A. 109; and given that Irizarry only “guess[ed]” that whatever occurred was an attempted robbery after the 911 operator asked if the assailants were trying to rob him. See A. 125 (Irizarry’s response: “I guess that’s what he wants.”). As mentioned previously, if, according to the scratch 61, Irizarry said that neither of the assailants said anything to him, or that he once had a conflict with one of them, his claim that this was an attempted robbery would have been further impeached. See Joseph, 86 N.Y.2d at 571-72 (reversing for trial court’s “refusal to impose the limited sanction” of an adverse inference charge, where lost Rosario material “might have provided useful additional support for the defense position”). And if the scratch 61 has stated that Irizarry initially identified someone else, that would have supported the defense’s claim that Selbin was misidentified. 12 II. IN ATTEMPTING TO JUSTIFY THE TRIAL COURT’S IDENTIFICATION CHARGE, RESPONDENT IGNORES THAT IRIZARRY NEVER IDENTIFIED THE SMALL PORTION THAT HE SAW OF AN ASSAILANT’S FACE AS SELBIN’S. Respondent claims that the main complainant, Armando Irizarry, “did say he saw a portion of [Selbin’s] face (A. 66), so there was nothing inaccurate about the court saying so” in its instruction to the jury. Resp. Br. 34. However, on the page that Respondent cites, A. 66, Irizarry simply testified that the perpetrator he had already identified as Selbin – based upon an indescribable walk and incorrect build, see App. Br. 31 – had his mask “halfway up,” so that the “cheek on one side of his face had been revealed.” There is nothing on A. 66, or anywhere else in Irizarry’s testimony, resembling a facial identification: no statement that he recognized the cheek as Selbin’s, that the cheek confirmed his unreliable identification, or that it was even consistent with that identification. Conspicuously, the prosecutor did not ask, and Irizarry did not say, whether he identified the small portion of the alleged assailant’s face as Selbin’s. The court was therefore wrong to tell the jury that Irizarry said he identified Selbin, in part, from “a portion of his face.” A. 433. The issue of identification was “closely contested,” and the court’s erroneous instruction might well have “prove[d] decisive” in the jury’s deliberations, App. Br. 32-33 (citations and internal quotation marks omitted), particularly given that a facial identification is far more 13 powerful than one based upon an indescribable gait and wrong build. This Court should reverse. 14 III. RESPONDENT FAILS TO REHABILITATE THE CREDIBILITY OF THE MAIN COMPLAINANT, AND TO ANALOGIZE HIS UNRELIABLE IDENTIFICATION OF SELBIN TO VARIOUS APPELLATE DIVISION PRECEDENTS. To rehabilitate the credibility of Armando Irizarry, Respondent claims that “[t]he verdict in no way suggests that the jury had any problem with Mr. Irizarry’s credibility or reliability.” Resp. Br. 15. This is just a total denial of reality. Irizarry testified that the alleged assailant he identified as Selbin carried a bat. A. 57-58. The jury doubted that, with good reason: According to Irizarry, the [Note: Material from this page has been deleted, pursuant to a letter, dated September 4, 2013, from the Chief Clerk.] 15 assailant with a bat repeatedly tried to hit his son, who had “his back against the elevators,” but missed every time because his son miraculously “avoid[ed] him.” App. Br. 8 (quoting A. 65) (internal quotation marks omitted). That is why the jury acquitted Selbin of attempted robbery in the first degree, which requires the use of a dangerous instrument. See App Br. 17. Respondent perseveres, even though the complainants failed to identify either alleged assailant’s face or voice, and even though Irizarry’s bases for identifying Selbin were either indescribable (his walk) or completely wrong (his build). See App. Br. 31. Respondent claims that, under various precedents, there was legally sufficient evidence that Selbin was one of the alleged assailants. Resp. Br. 12-13. Every case that Respondent cites, however, is simultaneously not binding on this Court and easily distinguishable. As even Respondent acknowledges, in all of those cases, although the perpetrators were masked, the complainants were able to recognize their voices. Resp. Br. 13 (discussing People v. Lee, 221 A.D.2d 473 (2d Dept. 1995); People v. Lyons, 197 A.D.2d 708 (2d Dept. 1993); and People v. Monette, 70 A.D.3d 1186 (3d Dept. 2010)). That was not the case here, however. While Irizarry said that he generally recognized voices, A. 61, he did not say that he recognized either assailant’s voice as Selbin’s. Additionally, in the cases Respondent cites, the complainants described the different perpetrators height and weight correctly – not as 16 distinguishably “slim and tall” when their build was in fact completely average. Respondent cannot cite a single precedent finding an identification as flimsy as the complainant’s legally sufficient. 17 CONCLUSION For the reasons stated in Points I and II, and previously stated in the opening brief, Selbin Martinez’s judgment of conviction should be reversed and a new trial ordered. For the reasons stated in Point III, and previously stated in the opening brief, his judgment of conviction should be reversed and the indictment dismissed. Dated: June 27, 2013 New York, New York RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant JOSEPH M. NURSEY, ESQ. Supervising Attorney By: ______________________________ RAHUL SHARMA, ESQ. Staff Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 (phone) (212) 492-4199 (fax) rsharma@appellatedefender.org