The People, Respondent,v.Selbin Martinez, Appellant.BriefN.Y.January 16, 2014To be argued by: RAHUL SHARMA (Counsel requests 15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SELBIN MARTINEZ, Defendant-Appellant. 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 April 22, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. THE COMPLAINING WITNESSES’ ACCOUNTS OF THE INCIDENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Irizarry Testifies that He Identified Selbin Martinez Solely from His Build and Body Movement. . . . . . . . . 5 B. Irizarry’s Description of the Charged Offense. . . . . . . . 7 C. Irizarry Claims that He Remembers More About the Incident Each Time He Discusses It, and Admits that He Collaborated with His Son on Their Testimony. . . . . . 10 II. THE POLICE INVESTIGATE AND ARREST SELBIN MARTINEZ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 III. THE POLICE FAIL TO PRESERVE OFFICER FRANCO’S “SCRATCH 61” REPORT, BUT THE JUDGE DECLINES TO GIVE A PERMISSIVE ADVERSE INFERENCE CHARGE TO THE JURY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 IV. AFTER SUMMATIONS, OVER THE DEFENSE’S OBJECTION, THE TRIAL JUDGE INSTRUCTS THE JURY THAT IRIZARRY IDENTIFIED SELBIN MARTINEZ IN PART FROM “A PORTION OF HIS FACE.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 V. SELBIN IS ACQUITTED OF ATTEMPTED ROBBERY IN THE FIRST DEGREE, BUT FOUND GUILTY OF ATTEMPTED ii ROBBERY IN THE SECOND DEGREE, AND HIS CONVICTION IS AFFIRMED ON APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 I. THE TRIAL COURT ERRED IN REFUSING TO GIVE A PERMISSIVE ADVERSE INFERENCE CHARGE FOR THE STATE’S FAILURE TO PRESERVE ROSARIO MATERIAL, WHERE THERE IS A STRONG LIKELIHOOD THAT THE MATERIAL CONTAINED STATEMENTS CONTRADICTING THE COMPLAINANTS’ TRIAL TESTIMONY. . . . . . . . . . . . . . . 19 A. The State’s Obligations Under People v. Rosario, and the Consequences for Failing to Meet Them. . . . . . . . . . . 21 B. In Declining to Give an Adverse Inference Charge, the Trial Court Incorrectly Relied On the Existence of Some Unarticulated “Reason” for the Loss of Rosario Material, Rather than Analyzing Whether the Defense Had Been Prejudiced, As It Most Certainly Had. . . . . . . . . . . . . . 25 II. THE TRIAL COURT PREJUDICED SELBIN MARTINEZ WHEN, OVER THE DEFENSE’S OBJECTION, IT ERRONEOUSLY INSTRUCTED THE JURY THAT ARMANDO IRIZARRY IDENTIFIED AN ALLEGED ASSAILANT AS SELBIN FROM A “PORTION OF HIS FACE.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 III. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT SELBIN MARTINEZ’S CONVICTION FOR ATTEMPTED ROBBERY, WHERE THE ONLY EVIDENCE OF THE OFFENSE WAS A COMPLAINANT’S CONTRADICTED TESTIMONY THAT ONE OF THE ASSAILANTS SAID “GIVE IT UP,” AND WHERE THE IDENTIFICATION OF SELBIN WAS BASED UPON AN INDESCRIBABLE BODY MOVEMENT AND INCORRECT BUILD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 iii TABLE OF AUTHORITIES Cases People v. Banch, 80 N.Y.2d 610 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25, 30 People v. Bell, 38 N.Y.2d 116 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 People v. Calabria, 3 N.Y.3d 80 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Carroll, 95 N.Y.2d 375 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Concepcion, 17 N.Y.3d 192 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. De Jesus, 42 N.Y.2d 519 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Foster, 64 N.Y.2d 1144 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Handy, 2013 N.Y. Slip Op. 02103 (March 28, 2013) . . . . . . . . . . . 23-24 People v. Haupt, 71 N.Y.2d 929 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Jamison, 47 N.Y.2d 882 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Joseph, 86 N.Y.2d 565 (1995) . . . . . . . . . . . . . . . . . . . . 20-22, 24-26, 30 People v. Lafontaine, 92 N.Y.2d 470 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Machado, 90 N.Y.2d 187 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Malizia, 62 N.Y.2d 755 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 People v. Martinez, 100 A.D.3d 537 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . 17-18 People v. Martinez, 71 N.Y.2d 937 (1988) . . . . . . . . . . . . . . . . . . 13, 18, 21-22, 25 People v. Martinez, 95 A.D.3d 677 (1st Dept. 2012) . . . . . . . . . . . . . . . . . . . . . . 18 iv People v. Piazza, 48 N.Y.2d 151 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. Rosario, 9 N.Y.2d 286 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Vilardi, 76 N.Y.2d 67 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24 People v. Wallace, 76 N.Y.2d 953 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Statutes N.Y. Penal Law § 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 160.10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CPL 240.45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CPL 240.75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22-23 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : against, : Ind. No. 2922/09 : SELBIN MARTINEZ, : : Defendant-Appellant : ---------------------------------------------------------------------X PRELIMINARY STATEMENT After a jury trial, Selbin Martinez was convicted on March 10, 2011, in the Supreme Court, Bronx County (Cirigliano, J.), of one count of attempted robbery in the second degree, N.Y. Penal Law §§ 110/160.10(1). He was sentenced to a term of four-and-a-half years of incarceration, to be followed by five years of post- release supervision. The Appellate Division, First Department, affirmed Mr. Martinez’s conviction on November 20, 2012. The Honorable Robert S. Smith granted leave on February 21, 2013. 2 QUESTIONS PRESENTED 1. Did the trial court err in refusing to give a permissive adverse inference charge as a sanction for the state’s failure to preserve Rosario material, where there is a significant likelihood that the material would have further contradicted the complaining witnesses’ testimony? 2. Did the trial court prejudice Selbin Martinez when it erroneously instructed the jury that the main complainant identified an alleged assailant as Selbin in part from a “portion of his face”? 3. Was the evidence legally sufficient to support Selbin Martinez’s conviction for attempted robbery, where the only evidence of the offense was a complainant’s contradicted testimony that one of the assailants said “Give it up,” and where that complainant’s identification was based upon an indescribable body movement and incorrect build? 3 INTRODUCTION Almost every bit of testimony by complainant Armando Irizarry was contradicted – by his criminal record, by his 23-year-old son (the other complainant), and by his own statements to the police during their investigation. Because not all of the State’s Rosario material was preserved, some contradictions probably never came to light, leaving only speculation about how the jury might have considered them. In response to the State’s failure to preserve Rosario material, the defense asked for the most limited sanction available, a permissive adverse inference charge. The trial judge refused to grant even that, despite this Court’s precedents showing that there is a strong presumption of prejudice when the State fails to preserve Rosario material. The trial court’s refusal to give a permissive adverse inference charge constituted reversible error, see Point I, as did its faulty identification charge to the jury, see Point II. 1 For the Court’s convenience, the Appendix is cited as “A.” 2 Irizarry testified that his son was 24 at the time of the incident. A. 63. That was incorrect; Irizarry, Jr., was only 23 when he testified, 16 months after the incident. A. 165. 4 STATEMENT OF FACTS I. THE COMPLAINING WITNESSES’ ACCOUNTS OF THE INCIDENT. One of the complainants in this case, Armando Irizarry, testified that two masked men attempted to rob him at about 5 p.m. on July 17, 2009, in the hallway outside of his Bronx apartment, at [Redacted] Havemeyer Avenue. A. 54-58.1 Mr. Irizarry said that he was with his son, Armando Irizarry, Jr.,2 waiting for an elevator on the 14th floor, when two men, one with a bat and the other with a gun, approached them. A. 57-58. Irizarry said that the men wore ski masks, hats, and gloves, and that the one with the bat wore sunglasses. A. 57, 134-35. The District Attorney’s report, written after interviewing Irizarry on the day of the incident, stated that “the complaining witnesses just returned from cashing their checks.” Court Ex. 1, Stipulations, A. 501. Irizarry, however, said that this was incorrect: he had not been paid that day, and he only ever received cash. A. 83-86. When Irizarry was asked about the discrepancy between his testimony and the DA’s report, he said that the DA must have misunderstood him because of his accent. A. 85. 3 For the sake of clarity, because Selbin and Chistopher Martinez’s cases have been consolidated, we will typically refer to them by their first names. 5 A. Irizarry Testifies that He Identified Selbin Martinez Solely from His Build and Body Movement. Irizarry testified at trial that he immediately identified the masked man with the bat as Selbin Martinez, a neighbor of his from the 13th floor. A. 61. He said that he recognized Selbin3 from his build and “the way he walks.” Id. When the prosecutor asked Irizarry to describe how Selbin walks, Irizarry responded that Selbin had “a particular way to walk. His shoulders. I just – I’m very upset with it from these things, and I know how he walks.” A. 60-61. Irizarry claimed that he identified Christopher Martinez as the other masked man by the way he ran, saying that it was “awkward[]” and “like hopping.” A. 59. The other complainant, Irizarry, Jr., never identified the man with the bat as Selbin Martinez, despite knowing Selbin and seeing him about “[f]our times” per week, A. 172, and despite seeing the portion of the man’s face “from the chin up to his nose.” A. 175. Irizarry described an uncanny ability to recognize people by their gait, claiming that he “could see [someone] in the street [a] mile away” and identify him 6 or her the next day. A. 93. Irizarry said that he developed this ability because he was “really bad with people and faces.” A. 61. Irizarry claimed on direct examination that he only ever had “limited conversations” with Selbin: “Most often is, Give me a cigarette, how the sports, hi and bye[.]” A. 60. On cross-examination, however, Irizarry was asked about “a confrontation” with Selbin over Irizarry’s using drugs on Selbin’s floor. A. 90. Irizarry denied that ever occurred. Id. A bit later, the following exchange took place: Q: [D]o you know there’s a lot of violence potentially associated with drugs? A: Yes. I need to hold my tongue here. Yes. Q: There’s also potential that someone can get violent? A: Of course, someone with a bat and a gun, of course. I see a lot of potential for violence in there. A. 91-92. When asked whether he had ever sold drugs, Irizarry answered, “Never.” A. 90-91. That was not the truth, however; when confronted about it, Irizarry admitted that, yes, he sold drugs, but “it was so long ago” and “I don’t see the relevance here.” A. 91. See also A. 55, 88 (Irizarry claiming on direct examination that his last drug conviction was “ten years, fifteen years ago,” but admitting on cross-examination that it may have only been “[f]ive to seven years” ago). On redirect, the prosecutor attempted to rehabilitate Irizarry by asking him 7 whether he “ever bought drugs from anyone at [Redacted] Havemeyer Avenue.” A. 148. Irizarry responded: “No. Because I don’t shit where I eat.” Id. B. Irizarry’s Description of the Charged Offense. Irizarry testified that he went up to the masked man with the bat and said, “What’s up, Silence?,” Selbin’s nickname. A. 61. According to Irizarry’s testimony, at that point the man “pushed” him and said, “Give it up.” A. 62. That testimony contradicts what Irizarry told investigators; he affirmatively told one detective that “none of the perpetrators said anything” to him, A. 109, and neither the responding officer’s memo book nor the complaint report mention Irizarry ever saying that he was pushed. A. 211. Additionally, Irizarry, Jr., did not testify that he ever saw anyone push his father or heard anyone say, “Give it up.” Irizarry testified that he then took out a sock with a cue ball that he carried “to defend myself of [sic] hostile people.” A. 63. He said that he began swinging his sock-weapon at the man with the gun, and that this man started to run away, acting “really chicken” and running “like a little bitch.” A. 64-65, 137-38. Irizarry said that he identified the man with the gun as Christopher Martinez by how he ran, as it was “just like” how Christopher ran whenever he saw Irizarry’s dog, A. 64-65, a Jack Russell terrier that Irizarry claimed weighed “[f]orty 8 pounds.” A. 141. Irizarry claimed that while all this was happening, his son had “his back against the elevators,” while the man with the bat tried to hit him. A. 65. According to Irizarry, the man missed every time because “[m]y son was avoiding him.” Id. Irizarry testified that the man with the bat also swung at him more than once, but never hit him. A. 113-14. However, the criminal court complaint that Irizarry signed on the day of the incident – after being told by the District Attorney to “read it over,” “[m]ake sure it’s complete,” and let her know “[i]f there’s anything missing,” A. 114-15 – made no mention of someone swinging a bat at either him or his son. A. 117-19. When informed of this at trial, Irizarry asked to see the complaint that he signed. A. 118. After reading it on the stand, he acknowledged that it made no mention of anyone swinging a bat at either him or his son. A. 118-19. He then surmised that if he forgot to mention the bat swinging to the District Attorney, it was because “I was in shock.” A. 119. But see A. 196 (the responding officer testifying that Irizarry “didn’t seem to have any trouble remembering information about what had just happened”). Later, on redirect, Irizarry said to the prosecutor, “[I] might have skipped it, but if I left it out, sorry.” A. 146. 9 Irizarry said that he hit the man with the bat “in the head somewhere,” then grabbed his son, ran downstairs, and called 911. A. 66. The time of the 911 call was 5:47 p.m. A. 222. When asked by the 911 operator if the assailants were “trying to rob” him, Irizarry replied, “I guess that’s what he wants.” A. 125. Irizarry said of his alleged assailants, “I think I know who they are.” People’s Ex. 1 (tape of Irizarry’s 911 call). Irizarry testified that no money was taken from him during the incident. A. 132-33. Irizarry, Jr., however, testified that he dropped twenty dollars at some point during the incident and never found it. A. 178. Irizarry said that he and his son went back to the 14th floor and found a sunglass lens on the floor, which is when he “realized” that he hit the man with the bat “in the face with my cue ball.” A. 78. The police tested the lens for DNA and fingerprints, but did not find anything connecting it to Selbin Martinez. A. 249, 251. A neighbor, Larry Krouser, said that on the day of the incident – at some point after 5:50 p.m., but unsure what time – he saw “two guys with hoods on and a mask” while exiting the elevator on the 13th floor. A. 288. Krouser said that he did not recognize the men or see a bat or gun, and that the men did not get on the elevator with him because “[i]t was crowded.” A. 289-90. 10 C. Irizarry Claims that He Remembers More About the Incident Each Time He Discusses It, and Admits that He Collaborated with His Son on Their Testimony. Irizarry testified that his memory of the incident was “[n]ot necessarily” “fresh” or “clear” when, later that day, he spoke to the police and District Attorney. A. 83-84, 108-09. However, he said that it had been “improving over time” and was “better today” than it was then. A. 108-09. When asked whether he remembered more about the incident each time he discussed it, Irizarry replied, “Of course.” A. 110. Irizarry considered any discrepancies in his testimony minor, saying that he had “told the tale” of what happened “to so many people,” and that “whatever I told one person” was “not necessarily . . . the same that I told to another. They both be the truth, [but] a little bit different.” A. 109-110. Irizarry said that he and his son “discussed differences in [their] memories of what happened that day,” because “he see[s] it one way, I see it another.” A. 127. He also admitted that he and Irizarry, Jr., discussed what they were going to say when they testified. A. 128. When asked whether he and his son had “practiced” their testimony with each other, Irizarry replied: “Of course. We just want this guy to be convicted.” Id. See also A. 129 (“[I‘ve] spoken to my son to get the whole picture right.”). 11 Irizarry testified that he was “[n]ot necessarily” over the trauma of the incident, and that he had not “been back in my house for a year-and-a-half.” A. 84. However, the day after that testimony, the prosecutor asked his son, “[W]here does your father live?” A. 165. Irizarry, Jr., answered, “[Redacted] Havemeyer,” the location of the incident. Id. The prosecutor then asked, “And do you visit him often?” Id. To which Irizarry, Jr., replied: “Yeah, four times a week.” Id. II. THE POLICE INVESTIGATE AND ARREST SELBIN MARTINEZ. Officer Hairo Franco responded to Irizarry’s 911 call. A. 184. Irizarry, Jr., said that his father “did most of the talking” when the police arrived. A. 180. Irizarry said that he did not tell Officer Franco who either of the assailants were because he was afraid. A. 81. Officer Franco said that based on the information Irizarry gave him, he was looking for “two males dressed in of [sic] black.” A. 186. Later, after Irizarry went to the precinct, Officer Franco said that he was told to look for Selbin Martinez. A. 187. Officer Franco said that he and his partner went to Selbin’s apartment, on the 13th floor of Irizarry’s building, and knocked on the door. A. 188. A “young lady about fourteen years old” answered, and the officers asked if they could speak to the adult who lived in the apartment. Id. The girl said that her mother was not 12 home, so the police waited until she arrived, and were then granted permission to enter. Id. Officer Franco testified that he found Selbin in a bedroom closet in a pile of clothes. A. 188-89. Selbin was placed under arrest. In his notes following the arrest, Officer Franco wrote that Selbin was wearing a “light blue baseball hat,” and that his physical condition was “[a]pparently normal.” A. 204, 206. Officer Franco claimed otherwise at trial, however, telling the prosecutor on direct examination that “[t]he first thing [he] noticed” about Selbin “was a cut on his forehead.” A. 189. About Selbin wearing a baseball hat, Officer Franco said, “No, I don’t recall that at all.” A. 204. Officer Franco did not explain the discrepancies between his notes and his testimony on direct examination. Photographs of Selbin taken after his arrest were shown to the jury as evidence of the cut on his forehead. People’s Ex. 5; A. 500. After Selbin Martinez was arrested, Irizarry told the police that Selbin’s brother, Christopher, was the other assailant. See A. 192. Selbin and Christopher were both indicted for multiple charges, including attempted robbery in varying degrees and attempted assault. See Ind. No. 2922- 09, A. 7. Trial commenced in November 2010. 4 This Court described the scratch 61 at issue in People v. Martinez, 71 N.Y.2d 937 (1988), as potentially containing the information that a complainant gave to officers after they responded to a robbery. Id. at 939. 13 III. THE POLICE FAIL TO PRESERVE OFFICER FRANCO’S “SCRATCH 61” REPORT, BUT THE JUDGE DECLINES TO GIVE A PERMISSIVE ADVERSE INFERENCE CHARGE TO THE JURY. Officer Franco handwrote an initial complaint report, also known as a “scratch 61,” but did not turn it over to the prosecutor. A. 201.4 When defense counsel asked to see the scratch 61, the prosecutor said that Officer Franco could not locate it. A. 296. Defense counsel said that if the scratch 61 had not been preserved, the defense would request a charge to the jury that it could draw an adverse inference about what the scratch 61 said. Id. The trial court said that it would consider giving that charge. Id. The next day, however, over defense counsels’ objections, the court decided against it, explaining that “[t]here is a reason to be said [Officer Franco] doesn’t have it any more.” A. 362-63. IV. AFTER SUMMATIONS, OVER THE DEFENSE’S OBJECTION, THE TRIAL JUDGE INSTRUCTS THE JURY THAT IRIZARRY IDENTIFIED SELBIN MARTINEZ IN PART FROM “A PORTION OF HIS FACE.” One of Selbin’s defenses at trial was that even if there had been an altercation, it was not an attempted robbery. (The top four counts against Selbin 14 were attempted robbery in varying degrees; of the remaining charges, the top count was attempted assault in the second degree. Verdict Sheet, A. 502.) Selbin’s lawyer argued in summation that the complaining witnesses were not credible, both because they rehearsed their testimony and because the parts that they failed to rehearse were so divergent. See generally A. 375-79. He also said: You did not hear any evidence that these two men, whoever they were, tried to reach for the property or grab the property of Armando Irizarry. The only possible piece of evidence that the District Attorney may point to is apparently one of the individuals said, “Give it up,” during this incident. A. 387. He then argued to the jury that the phrase “Give it up” was “very ambiguous,” and could have referred to “something that’s not property.” Id. He also reminded the jury that there was evidence that “none of these people actually said anything during this incident.” Id. The prosecution argued in summation that one of the perpetrators had indeed said “Give it up,” and that the phrase clearly referred to property: I have proven that on July 17, 2009, these two defendants approached Armando Irizarry with a bat and a gun, that they pushed him and they demanded he give it up. You have common sense. You know what that means. You know they were trying to rob him. They 15 swung a bat, they pointed a gun, and they demanded he give up his property. A. 398. Selbin’s other defense was that, to the extent that an offense occurred, he was not involved. A. 387. See also A. 293-95 (defense counsel’s unsuccessful motion to dismiss the case for legally insufficient evidence). Selbin’s attorney noted in summation that the police never found in Selbin’s apartment the black clothes or masks that Irizarry said the assailants were wearing, or the bat that one of them allegedly carried. A. 385. As the trial judge said to the jury: “Apart from [Irizarry’s] testimony that the defendants are the right men[,] there is no evidence whatsoever which identifies the defendants as the perpetrators.” A. 433. Before charging the jury with respect to Irizarry’s identification, the trial court asked the prosecutor, “[W]hat do you contend is the complainant’s testimony in reference to [Selbin]?” A. 271. The prosecutor claimed that Irizarry identified Selbin by his body shape, manner of walking, voice, and by the fact that he “saw a portion of [Selbin’s] face.” Id. That was incorrect. Irizarry testified that he recognized Selbin only by his body shape and manner of walking. A. 61. Although Irizarry said that he was “able to recognize voices” generally, the prosecutor never asked him, and Irizarry never said, whether he recognized a voice during the encounter as Selbin 16 Martinez’s. Id. Similarly, although Irizarry testified that, at one point, the ski mask of the assailant with a bat went “halfway up” his face “from the chin up [to] the nose,” the prosecutor never asked Irizarry, and Irizarry never said, whether he identified that portion of the face as Selbin Martinez’s. A. 66. Indeed, Irizarry volunteered that he was “really bad” with faces, A. 61, and Irizarry, Jr., who said that he saw the same portion of the alleged assailant’s face, A. 175, never identified it as Selbin Martinez’s either. Over the defense’s objection, A. 418, the trial court instructed the jury that Irizarry made a facial identification: “When [Armando Irizarry] testified about Selbin Martinez[,] he said he recognized his manner of walking, shape and saw a portion of his face.” A. 433. In response to Selbin’s post-trial motion to set aside the verdict, see A. 504, the judge said that this instruction was not prejudicial, since “the viewing of portion of the face” was “merely [an] additional building block[]” to Irizarry’s “established” identification of Selbin. A. 517. 17 V. SELBIN IS ACQUITTED OF ATTEMPTED ROBBERY IN THE FIRST DEGREE, BUT FOUND GUILTY OF ATTEMPTED ROBBERY IN THE SECOND DEGREE, AND HIS CONVICTION IS AFFIRMED ON APPEAL. The jury acquitted Selbin of both counts of attempted robbery in the first degree (for displaying what looked like a firearm or using a dangerous instrument). See Verdict Sheet, A. 502; Jury Charge, A. 441-45. However, it found him guilty of attempted robbery in the second degree (being aided by a person actually present, see Jury Charge, A. 445-46). A. 478. Christopher Martinez was found guilty of attempted robbery in the third degree. A. 481. Selbin was sentenced as a predicate felony offender to a term of four-and-a-half years in prison and five years of post-release supervision. A. 497. See also Second Felony Information, A. 519 (listing Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02, as his predicate conviction). The Appellate Division, First Department, affirmed Selbin’s conviction. People v. Martinez, 100 A.D.3d 537, 537 (1st Dept. 2012), reprinted at A. 3. The court found that evidence of Selbin’s guilt was “overwhelming,” in part because the complainant “saw a portion of defendant’s face that was left exposed, and heard him speak during the incident.” Id. at 537-38. As noted previously, the prosecutor never asked, and Irizarry never said, whether he identified the assailant’s voice or portion of face as Selbin Martinez’s. A. 61, 66. 18 The Appellate Division further held that the charge to the jury that Irizarry made a facial identification of Selbin did not deprive Selbin of a fair trial. 100 A.D.3d at 538. Finally, the court held that the trial judge exercised appropriate discretion in declining an adverse inference charge for the failure to preserve Officer Franco’s notes. Id. In so holding, the court cited its decision in Christopher Martinez’s appeal, id., which rested on the rationale “[t]here was no evidence of bad faith on the part of the People or prejudice to the defendant[.]” People v. [Christopher] Martinez, 95 A.D.3d 677, 678 (1st Dept. 2012) (citing People v. Martinez, 71 N.Y.2d 937, 940 (1988) and CPL 240.75). 19 ARGUMENT I. THE TRIAL COURT ERRED IN REFUSING TO GIVE A PERMISSIVE ADVERSE INFERENCE CHARGE FOR THE STATE’S FAILURE TO PRESERVE ROSARIO MATERIAL, WHERE THERE IS A STRONG LIKELIHOOD THAT THE MATERIAL CONTAINED STATEMENTS CONTRADICTING THE COMPLAINANTS’ TRIAL TESTIMONY. If the initial handwritten complaint report by the responding officer, also known as the scratch 61, see A. 201, had been preserved, defense counsel would have used it to fully verify – and cross-examine – the recollections of the main prosecution witnesses. Several of those recollections, including Armando Irizarry’s testimony that one of the assailants told him to “give it up,” had already been partially impeached, in part by using Rosario material that the State did preserve. See A. 109 (noting that Irizarry told a detective that “none of the perpetrators said anything” to him). That ambiguous, alleged statement – “Give it up” – was the only evidence that the incident was an attempted robbery, as opposed to one of the lesser charges in the indictment. See A. 398 (prosecutor arguing that the statement must have been a demand for Irizarry to “give up his property”). If the scratch 61 stated that at some point Irizarry told the responding officer that none of the perpetrators said anything to him, the jury would have been even less likely to believe that someone said, “Give it up.” Additionally, the scratch 61 20 might have contradicted other aspects of Irizarry’s testimony, further impeaching his already suspect credibility. See, e.g., A. 90-91 (Irizarry admitting that his testimony that he “[n]ever” sold drugs was a lie); A. 114-19 (Irizarry acknowledging that the criminal court complaint, which he signed after being told to “[m]ake sure it’s complete,” contradicted his testimony that someone swung a bat at him during the incident). When defense counsel asked to see the scratch 61, the prosecutor revealed that it had been lost. A. 296. In response to the State’s failure to preserve Rosario material, the defense did not ask for the “drastic remedy” of dismissing the charges, or for the “less drastic but nonetheless stringent” sanction of witness preclusion; rather, it asked for the “limited sanction” of a permissive adverse inference charge. Id.; People v. Joseph, 86 N.Y.2d 565, 572 (1995). The trial court refused to give even that, explaining that “[t]here is a reason to be said [the responding officer] doesn’t have it any more.” A. 362-63. The court did not analyze, as it was supposed to, whether the defense might have been prejudiced by the loss of Rosario material. If the court had engaged in the proper analysis, it would have found a strong likelihood of prejudice, entitling the defense to at least a permissive adverse inference charge. 21 A. The State’s Obligations Under People v. Rosario, and the Consequences for Failing to Meet Them. Under People v. Rosario, 9 N.Y.2d 286 (1961), accused persons are entitled to “any nonconfidential written or recorded statements of a prosecution witness that relate to the subject matter of the witness’ testimony.” People v. Banch, 80 N.Y.2d 610, 615 (1992); see also CPL 240.45. As part of the State’s duty to turn over Rosario material, the police and prosecution are required to preserve such material. People v. Martinez, 71 N.Y.2d 937, 940 (1988). If Rosario material has been lost or destroyed, a court must attempt to determine its content and relevance, along with “the circumstances of the loss or destruction.” Banch, 80 N.Y.2d at 616; see also Joseph, 86 N.Y.2d at 571. If, after that inquiry, the court finds that the prosecution did not exercise sufficient care in preserving Rosario material and that the defendant has been prejudiced, the court “must then impose an appropriate sanction – preclusion of the witness’ testimony or an adverse inference charge, for example.” Banch, 80 N.Y.2d at 616 (citing Martinez, 71 N.Y.2d at 940). Failure to impose any sanction constitutes “an abuse of discretion.” Id. (citing People v. Wallace, 76 N.Y.2d 953, 955 (1990)). The sanction should be “appropriate and proportionate to the harm” caused by the loss of Rosario material, with the most “drastic remedy” being dismissal of the charges, and the most limited a permissive adverse inference 22 charge. Joseph, 86 N.Y.2d at 572 (quoting People v. Haupt, 71 N.Y.2d 929, 931 (1988)) (internal quotation marks omitted). This case provides an opportunity for the Court to make explicit what is already obvious from its precedents: that when the State fails to heed its obligation to preserve Rosario material, there is a strong presumption that the defendant has been prejudiced to at least some degree. In Martinez, for example, 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 it found the possibility of prejudice “remote.” Joseph, 86 N.Y.2d at 572 (discussing Martinez, 71 N.Y.2d 937) (internal quotation marks omitted). And in Joseph, this Court reversed a trial court for failing to impose the “limited sanction” of an adverse inference charge, where the defendant could make only a “colorable claim” and “conjectural showing” of prejudice resulting from the loss of Rosario material. Id. at 571-72. In the Appellate Division, Respondent argued that the prejudice standard in Martinez was effectively abrogated by the passage, in 2000, of CPL 240.75. App. Div. Resp. Br. 36-37. According to Respondent, that statute imposes a “much larger” burden on a defendant to convince an appellate court to reverse a conviction for the State’s failure to disclose Rosario material. Id. (noting that CPL 23 240.75 requires appellate courts, before reversing for non-disclosure, to find a “reasonable possibility that the non-disclosure materially contributed to the result of the trial”). Respondent is wrong. CPL 240.75 does not apply to this case, since the reason for reversal is not the State’s failure to disclose Rosario material, but the trial court’s failure to issue an adverse inference charge in response to that failure. Even if CPL 240.75 does apply, however, the “reasonable possibility” standard is met if the State’s non-disclosure of Rosario material was not “harmless beyond a reasonable doubt.” People v. Malizia, 62 N.Y.2d 755, 757 (1984). The “reasonable possibility” standard is “essentially a reformulation of the ‘seldom if ever excusable’ rule,” People v. Vilardi, 76 N.Y.2d 67, 77 (1990), and it is “perhaps the most demanding test yet formulated for harmless error analysis.” People v. Machado, 90 N.Y.2d 187, 193 (1997) (citation and internal quotation marks omitted). Applications of the “reasonable possibility” standard further prove that it does not place a significant burden on defendants. Applying the standard in Vilardi, for instance, this Court held in favor of the defendant because “undisclosed evidence might have led to a . . . different outcome.” 76 N.Y.2d at 78 (emphasis added). And just recently, in People v. Handy, __ N.Y.3d __, 2013 24 N.Y. Slip Op. 02103 (March 28, 2013), the Court applied the standard to reverse a trial court for failing to give an adverse inference charge for the State’s destruction of evidence – without disagreeing that the exculpatory nature of the evidence was “merely speculative.” Id. at *8. A strong presumption of prejudice is necessary because it is the State’s own failure to preserve Rosario material that makes it “impossible to know whether the information [in that material] was consistent with the People’s position at trial.” Joseph, 86 N.Y.2d at 571. See also Handy, 2013 N.Y. Slip Op. 02103, at *8 (“[I]t was State agents who, by destroying [potentially exculpatory evidence], created the need to speculate about its contents.”). Making the presumption explicit would also hopefully “raise the consciousness of State employees” about the need to preserve statements by future prosecution witnesses. Id.; see also Vilardi, 76 N.Y.2d at 72, 77 (explaining that the “reasonable possibility” standard has the benefit of being “a clear rule that properly encourages [State] compliance with [disclosure] obligations”). 25 B. In Declining to Give an Adverse Inference Charge, the Trial Court Incorrectly Relied On the Existence of Some Unarticulated “Reason” for the Loss of Rosario Material, Rather than Analyzing Whether the Defense Had Been Prejudiced, As It Most Certainly Had. The trial court failed to assess, as is required, whether the defense had been prejudiced by the State’s failure to preserve Rosario material. See Banch, 80 N.Y.2d at 616. Instead, in rejecting the defense’s request for a permissive adverse inference charge, the court relied on the fact that “[t]here is a reason to be said [the responding officer] doesn’t have it any more.” A. 362-63. Since there is no evidence that the trial court ever analyzed whether the defense had been prejudiced, we join the Co-Defendant’s argument that this Court should reverse without “reach[ing] the merits of the claim of prejudice,” as that claim was not ruled upon by the trial court. Co-Defendant’s Br. 21-22 (discussing People v. Concepcion, 17 N.Y.3d 192 (2011) and People v. Lafontaine, 92 N.Y.2d 470 (1998)). If the Court rejects that argument, it should reverse because the State’s failure to preserve Rosario material created a strong likelihood of prejudice to Selbin, far too great for the trial court to reject the “limited sanction” of a permissive adverse inference charge. Joseph, 86 N.Y.2d at 571-72 (reversing the trial court for refusing to give an adverse inference charge, where the defendant made only a “conjectural showing” of prejudice); see also Martinez, 71 N.Y.2d at 26 940 (finding adverse inference charge an “appropriate” sanction, even though the possibility of prejudice was “remote”). The prosecution’s case relied entirely on the credibility of the complainants, making any previous statements they made to the police vital to Selbin Martinez’s defense. Armando Irizarry provided the only direct evidence that “identifie[d] the defendants as the perpetrators.” A. 433. Additionally, Irizarry’s claim that one of the assailants told him to “give it up” was the only evidence that what occurred was an attempted robbery – especially since there was no evidence that the alleged assailants reached for any property. See A. 387, 398. The scratch 61 would have been very useful in cross-examining Irizarry’s identification of Selbin and his claim that someone told him to “give it up.” See Joseph, 86 N.Y.2d at 574 (explaining that the Rosario rule is “solely designed” to facilitate the effective cross-examination of prosecution witnesses). There were already serious doubts about the complaining witnesses’ credibility, especially Irizarry’s. To recap the most questionable testimony: • Irizarry claimed that he remembered more about the incident each time he discussed it. A. 110. • Irizarry said that even if “whatever [he] told one person” was “not necessarily . . . the same that [he] told to another,” both were “the truth.” A. 109-110. 27 • Irizarry admitted that he and his son “practiced” their testimony with each other, since his son saw what happened “one way, [and] I see it another.” A. 127-28. • Irizarry admitted that his prior testimony that he “[n]ever” sold drugs was a lie. A. 90-91. • Irizarry, Jr., testified that his father lived at [Redacted] Havemeyer Avenue, the location of the incident, and that he visited his father “four times a week.” A. 165. Just the day before, Irizarry, Sr., claimed that he had not been back there “for a year-and-a-half.” A. 84. • Irizarry testified that an assailant “pushed” him and said, “Give it up.” A. 62. However, his son never testified that he either saw or heard that. Additionally, Irizarry affirmatively told one detective that “none of the perpetrators said anything” to him. A. 109. Finally, neither the responding officer’s memo book nor the complaint report that the State did preserve mention Irizarry ever saying that he was pushed. A. 211. • Irizarry claimed that the perpetrator he identified as Selbin swung a bat at him more than once. A. 113-14. However, he signed a 28 criminal court complaint – after being told to “read it over,” “[m]ake sure it’s complete,” and let the District Attorney know “[i]f there’s anything missing” – that made absolutely no mention of this. A. 114- 19. • Irizarry claimed that the reason he neglected to tell the District Attorney that one of the assailants repeatedly swung a bat at him was because “I was in shock.” A. 119. Officer Hairo Franco, however, recalled that Irizarry “didn’t seem to have any trouble remembering information about what had just happened.” A. 196. The defense was only able to discover changes in Irizarry’s account of events – including his claims that he was “pushed”; that someone told him to “give it up”; and that someone repeatedly swung a bat at him – using Rosario material that the State properly preserved. Certainly, those shifts in Irizarry’s account contributed to the jury’s decision not to trust his testimony that the assailants possessed a bat and gun. See A. 478, 481 (finding Selbin and Christopher Martinez not guilty of attempted robbery in the first degree). Because the scratch 61 was not preserved, we can only guess what else the jury would not have believed if it had learned of additional changes in Irizarry’s story. Given that Irizarry admitted that his recollections of the incident expanded with each 29 retelling, see A. 108-10, the scratch 61 likely would have shown even more changes in his account of what happened, impeaching his credibility further. If, for example, the scratch 61 stated that at some point Irizarry claimed that neither of the assailants said anything to him, there would have been even less reason to believe that one of them told him to “give it up.” If it stated that Irizarry named someone else as an assailant, then his identification of Selbin would have carried even less weight. And if the scratch 61 stated that at some point Irizarry said that he once had a conflict with one of the assailants, that would have supported the defense’s theory that this was not an attempted robbery. See A. 387 (defense counsel arguing that even if the jury believed that an assailant told Irizarry to “give it up,” that did not refer to property but something else). See also A. 90-92 (Irizarry denying ever having had a conflict over his drug use with Selbin Martinez, but suggesting that this incident might have been drug-related). Indeed, 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”). These are just three statements that the scratch 61 might have contained that would have directly assisted Selbin’s defense that he was misidentified and that Irizarry was lying when he said that one of the assailants told him to “give it up.” 30 See A. 387. Any other differences between Irizarry’s testimony at trial and his statements in the scratch 61 would have at least further impugned his credibility, leading the jury to disbelieve other claims that he made. Considering all the changes in Irizarry’s story that were found using properly preserved Rosario material, the State’s failure to preserve the scratch 61 posed a strong likelihood of prejudice to Selbin. This Court has found that a permissive adverse inference charge was appropriate and necessary where there was far less of a possibility of prejudice – where the possibility was only “remote” or “conjectural.” Joseph, 86 N.Y.2d at 571-72 (citation and internal quotation marks omitted). Given the likelihood of prejudice in this case, the trial court’s failure to impose even the “limited sanction” of a permissive adverse inference charge was error, and this Court should reverse. Joseph, 86 N.Y.2d at 572; see also Banch, 80 N.Y.2d at 616. 31 II. THE TRIAL COURT PREJUDICED SELBIN MARTINEZ WHEN, OVER THE DEFENSE’S OBJECTION, IT ERRONEOUSLY INSTRUCTED THE JURY THAT ARMANDO IRIZARRY IDENTIFIED AN ALLEGED ASSAILANT AS SELBIN FROM A “PORTION OF HIS FACE.” The prosecution’s only direct evidence that Selbin Martinez was involved in the alleged incident was Armando Irizarry’s claim that he recognized an assailant as Selbin. See A. 433 (trial judge instructing the jury that apart from Irizarry’s testimony, “there is no evidence whatsoever which identifies the defendants as the perpetrators”). Irizarry said that he was able to recognize Selbin because of the alleged assailant’s build and the way he walked. A. 61. Irizarry, however, was unable to describe how Selbin walked when the prosecutor asked him to do so: “His shoulders. I just – I’m very upset it it from these things, and I know how he walks.” A. 60-61. Irizarry’s unreliable identification of Selbin was significantly bolstered, when the trial court, over the defense’s objection, erroneously instructed the jury that Irizarry made a facial identification as well. The court said: “When 32 [Armando Irizarry] testified about Selbin Martinez[,] he said he recognized his manner of walking, shape, and saw a portion of his face.” A. 433. In fact, the only time Irizarry ever talked about recognizing faces was when he mentioned that he was “really bad” at that. A. 61. To be sure, Irizarry and his son did mention that the ski mask of the alleged assailant with a bat went “halfway up” his face “from the chin up [to] the nose.” A. 66, 175. Conspicuously, however, the prosecutor never asked, and neither of the complainants said, whether they identified that small portion of the alleged assailant’s face as Selbin Martinez’s. Id. After the trial ended, in response to Selbin’s CPL 330.30 motion, the judge denied that his facial identification instruction had prejudiced Selbin, since that was “merely [an] additional building block[]” to Irizarry’s already “established” identification. A. 517. The trial court’s instruction to the jury was erroneous and prejudicial to Selbin Martinez, and this Court should reverse his conviction. People v. Bell, 38 N.Y.2d 116, 120-21 (1975). The issue of identification was “closely contested”; Irizarry’s son did not recognize either of the assailants as Selbin, and Irizarry’s identification was based upon factors that he either was unable to describe or that he described incorrectly. Because the issue of identification was so close and central, it was incumbent upon the trial court to give an instruction that was 33 correct and balanced. Saying that Irizarry recognized the small “portion of face” that he viewed as Selbin’s was neither of those things, especially considering the persuasiveness of a facial identification over an identification based upon an indescribable body movement and incorrect build. Because the court’s erroneous instruction to the jury might well have “eventually prove[d] decisive” in its deliberations, this Court must reverse. People v. De Jesus, 42 N.Y.2d 519, 524 (1977) (citation and internal quotation marks omitted); see also People v. Jamison, 47 N.Y.2d 882, 883-84 (1979). 34 III. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT SELBIN MARTINEZ’S CONVICTION FOR ATTEMPTED ROBBERY, WHERE THE ONLY EVIDENCE OF THE OFFENSE WAS A COMPLAINANT’S CONTRADICTED TESTIMONY THAT ONE OF THE ASSAILANTS SAID “GIVE IT UP,” AND WHERE THE IDENTIFICATION OF SELBIN WAS BASED LARGELY UPON AN INDESCRIBABLE BODY MOVEMENT. The only evidence that the alleged incident in this case was an attempted robbery was that one of the assailants might have told Armando Irizarry to “give it up.” See A. 398 (prosecutor arguing that the statement must have been a demand for Irizarry “to give up his property”). That testimony was contradicted by Irizarry himself; he told a detective on the day of the incident that “none of the perpetrators said anything” to him. A. 109. Irizarry’s son, meanwhile, never testified that he heard someone say that. The only direct evidence that Selbin Martinez was even involved in the alleged incident was Irizarry’s identification from the assailant’s build and gait, the latter of which he could not describe. A. 60-61. Irizarry’s identification and testimony that someone told him to “give it up” are legally insufficient to sustain Selbin Martinez’s conviction for attempted robbery. 35 Evidence is legally sufficient if, viewing it in the light most favorable to the prosecution, a rational trier of fact could find that it establishes “the essential elements of the crime beyond a reasonable doubt.” People v. Carroll, 95 N.Y.2d 375, 382 (2000). Although the evidence must be viewed in the prosecution’s favor, “conjecture and suspicion” cannot stand in for facts and inferences. People v. Piazza, 48 N.Y.2d 151, 159 (1979). Additionally, when there are “hopeless contradictions by the sole prosecution witness,” this Court may find his testimony “unreliable as a matter of law” and overturn a conviction. People v. Calabria, 3 N.Y.3d 80, 82 (2004) (citing People v. Foster, 64 N.Y.2d 1144, 1147 (1985)) (internal quotation marks omitted). A rational trier of fact could not have credited Armando Irizarry’s claim that he positively identified Selbin Martinez as one of the alleged assailants. According to Irizarry’s own account, the alleged assailant that he identified as Selbin was wearing a ski mask, hat, sunglasses, and gloves. A. 57. Although Irizarry said that he generally recognized voices, A. 61, and that he saw a portion of the assailant’s face, A. 66, he never testified that he recognized the assailant’s voice or face as Selbin’s. Additionally, Irizarry’s 23-year-old son, who also knew Selbin Martinez, A. 172, and who also saw a portion of the alleged assailant’s face, A. 175, did not identify the assailant as Selbin. Irizarry’s bases for 36 recognizing Selbin – his walk and his build – were unreliable, given that he could not describe how Selbin walked, A. 60, and given that he was simply wrong about Selbin being “really slim and tall.” A. 61. A rational trier of fact also could not have found Selbin guilty beyond a reasonable doubt of attempted robbery. Although Irizarry testified that an assailant told him to “give it up,” A. 62, his son did not testify ever hearing that, and Irizarry told a detective otherwise during the investigation, A. 109, rendering Irizarry’s testimony unreliable as a matter of law. Even if the Court disagrees, “Give it up” is too ambiguous of a statement to serve as the sole basis for convicting someone of attempted robbery. That is only more so the case given the suggestion by the defense that Selbin Martinez and Irizarry had previously had “a confrontation,” and given the suggestion by Irizarry himself that this incident might have been drug-related. See A. 90-92. 37 CONCLUSION For the reasons stated in Points I and II, Selbin Martinez’s judgment of conviction should be reversed and a new trial ordered. For the reasons stated in Point III, his judgment of conviction should be reversed and the indictment dismissed. Dated: April 22, 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