The People, Respondent,v.Selbin Martinez, Appellant.BriefN.Y.January 16, 2014To be argued by RAVI KANTHA (Time Request: 15 minutes) COURT OF APPEALS State of New York _______ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SELBIN MARTINEZ, Defendant-Appellant. _____________________________________________________ R E S P O N D E N T ’ S B R I E F _____________________________________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 718-838-7568 kanthar@bronxda.nyc.gov JOSEPH N. FERDENZI NANCY D. KILLIAN RAVI KANTHA Assistant District Attorneys Of Counsel PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................. ii STATEMENT ........................................................................................................... 1 QUESTIONS PRESENTED ................................................................................... 2 THE FACTS ............................................................................................................. 3 THE INDICTMENT .............................................................................................. 3 THE TRIAL ........................................................................................................ 3 THE PEOPLE’S CASE ......................................................................................... 3 THE DEFENSE.................................................................................................... 8 ARGUMENT ............................................................................................................ 9 POINT ONE: DEFENDANT’S CONVICTION WAS SUPPORTED BY OVERWHELMING EVIDENCE .............................................................................. 9 POINT TWO: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT DECLINED TO ISSUE AN ADVERSE INFERENCE CHARGE REGARDING THE LOSS OF OFFICER FRANCO’S HANDWRITTEN COMPLAINT REPORT, AND IN ANY EVENT, ANY ERROR IN THAT REGARD WAS HARMLESS .................................17 POINT THREE: THE TRIAL COURT’S IDENTIFICATION CHARGE WAS PROPER IN ALL RESPECTS ............................................................................................33 CONCLUSION .......................................................................................................39 PRINTING SPECIFICATION STATEMENT ..................................................40 ii TABLE OF AUTHORITIES CASES Barnes v. Lavallee, 38 N.Y.2d 754 (1975) ..............................................................12 People v. Arafet, 13 N.Y.3d 460 (2009) ..................................................................31 People v. Bell, 38 N.Y.2d 116 (1975) .....................................................................37 People v. Bleakley, 69 N.Y.2d 490 (1987) ....................................................... 10, 14 People v. Brown, 71 A.D.3d 1043 (2d Dept. 2010) ................................................28 People v. Concepcion, 17 N.Y.3d 192 (2011) .................................................. 29, 30 People v. Consolazio, 40 N.Y.2d 446 (1976) ..........................................................19 People v. Conway, 6 N.Y.3d 869 (2006) .................................................................10 People v. Crimmins, 36 N.Y.2d 230 (1975) ............................................... 31, 32, 38 People v. Culhane, 45 N.Y.2d 757 (1978) ...............................................................35 People v. Deegan, 69 N.Y.2d 976 (1987) ................................................................10 People v. DeJesus, 42 N.Y.2d 519 (1977) ...............................................................37 People v. Delamota, 18 N.Y.3d 107 (2011) ...................................................... 10, 18 People v. Devarez, 211 A.D.2d 570 (1st Dept. 1995) ...................................... 14, 15 People v. Ford, 66 N.Y.2d 428 (1985) .....................................................................10 People v. Gray, 86 N.Y.2d 10 (1995) ......................................................................11 People v. Handy, __ N.Y.__, 2013 N.Y. Slip Op. 02103 (Mar. 28, 2013) ...... 28, 29 People v. Haupt, 71 N.Y.2d 929 (1988) ..................................................................25 iii People v. Hawkins, 11 N.Y.3d 484 (2008) ..............................................................11 People v. Hudson, 251 A.D.2d 124 (1st Dept. 1998) ....................................... 35, 37 People v. Jamison, 47 N.Y.2d 882 (1979) ........................................................ 37, 38 People v. Jenkins, 98 N.Y.2d 280 (2002) ................................................................27 People v. Johnson, 57 N.Y.2d 969 (1982) ...............................................................14 People v. Joseph, 86 N.Y.2d 565 (1995) .................................................................26 People v. Kello, 96 N.Y.2d 740 (2001) ...................................................................38 People v. Lafontaine, 92 N.Y.2d 470 (1998) ...........................................................30 People v. Lee, 221 A.D.2d 473 (2d Dept. 1995) .....................................................13 People v. Lesiuk, 81 N.Y.2d 485 (1993) .................................................................10 People v. Lyons, 197 A.D.2d 708 (2d Dept. 1993) .................................................13 People v. Martinez, 71 N.Y.2d 937 (1988) ................................................. 25, 26, 27 People v. Martinez, 95 A.D.3d 677 (1st Dept. 2012) ..........................................3, 30 People v. Martinez, 100 A.D.3d 537 (1st Dept. 2012) ........................................1, 30 People v. Mateo, 2 N.Y.3d 383 (2004) ....................................................................14 People v. Monette, 70 A.D.3d 1186 (3d Dept. 2010) ..............................................13 People v. Norman, 85 N.Y.2d 609 (1995) ...............................................................10 People v. Norris, 34 A.D.3d 501 (2d Dept. 2006) ...................................................28 People v. Ranghelle, 69 N.Y.2d 56 (1986) ....................................................... 19, 28 People v. Rosario, 9 N.Y.2d 286 (1961) ....................... 19, 20, 23, 26, 27, 29, 30, 31 iv People v. Rossey, 89 N.Y.2d 970 (1997) .................................................................10 People v. Sandore, 175 A.D.2d 660 (4th Dept. 1991) .............................................28 People v. Saunders, 64 N.Y.2d 665 (1984) ...................................................... 35, 37 People v. Scarborough, 49 N.Y.2d 364 (1980) ........................................................10 People v. Stephens, 84 N.Y.2d 990 (1994) ..............................................................18 People v. Thomas, __ N.Y.__, 2013 N.Y. Slip Op. 03934 (June 4, 2013)..............30 People v. Wallace, 76 N.Y.2d 953 (1990) .................................................. 20, 21, 26 People v. Ward, 282 A.D.2d 819 (3d Dept. 2001) ..................................................28 People v. Wolf, 284 A.D.2d 102 (1st Dept. 2001), aff’d, 98 N.Y.2d 105 (2002) ...20 People v. Woods, 199 A.D.2d 176 (1st Dept. 1993) ...............................................37 STATUTES 22 New York Codes, Rules, and Regulations ("NYCRR") § 500.14(b) .................11 2000 Sess. Law of N.Y., ch. 1, § 48 ........................................................................26 Civil Practice Law and Rules (“CPLR”) 5528 ........................................................11 Criminal Procedure Law (“CPL”) § 240.75 .................................................... passim CPL § 300.10(2) .......................................................................................................34 CPL § 470.15(1) ................................................................................................ 29, 30 Penal Law §§ 110/120.00(1) ...................................................................................... 3 Penal Law §§ 110/120.05(2) ...................................................................................... 3 Penal Law §§ 110/155.25 .......................................................................................... 3 v Penal Law §§ 110/155.30(5) ...................................................................................... 3 Penal Law §§ 110/160.05 .......................................................................................... 3 Penal Law §§ 110/160.10(1) ............................................................................. 1, 2, 3 Penal Law §§ 110/160.15(3) ...................................................................................... 3 Penal Law §§ 110/160.15(4) ...................................................................................... 3 Penal Law §§ 110/165.40 .......................................................................................... 3 OTHER AUTHORITIES Peter Preiser, 1985 Supp Practice Commentary, McKinney’s Cons Laws of NY, Book 11A ..............................................................................................................19 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK Respondent, -against- SELBIN MARTINEZ, Defendant-Appellant. --------------------------------------------------------------------X RESPONDENT’S BRIEF STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of this Court, granted February 21, 2013, Selbin Martinez appeals from an order of the Supreme Court of the State of New York, Appellate Division, First Department, entered November 20, 2012, unanimously affirming a judgment of the Supreme Court, Bronx County (Cirigliano, J.), rendered on March 10, 2011. People v. Selbin Martinez, 100 A.D.3d 537 (1st Dept. 2012). Defendant was found guilty, after a jury trial, of Attempted Robbery in the Second Degree (Penal Law §§ 110/160.10[1]) and was sentenced to a determinate prison term of 4 years. Defendant is incarcerated pursuant to this judgment. 2 QUESTIONS PRESENTED 1. Whether defendant’s conviction for Attempted Robbery in the Second Degree was supported by legally sufficient evidence? The trial court denied a motion for a trial order of dismissal, and the jury found defendant guilty of Attempted Robbery in the Second Degree. 2. Whether the trial court abused its discretion when it declined to issue an adverse inference charge regarding the loss of an officer’s handwritten complaint report after defendant had been given the typewritten copy? The trial court properly exercised its discretion in denying defendant’s request that it issue an adverse inference charge 3. Whether the trial court correctly referred in its identification charge to the victim’s testimony that he recognized defendant based on his body shape and movements and that he saw a portion of defendant’s face? Despite acknowledging that the victim testified that he saw a portion of defendant’s face, defense counsel requested that the court omit any reference to defendant’s face in its identification charge. The trial court properly declined to alter its charge. 3 THE FACTS The Indictment By Indictment Number 2922/2009, filed on August 7, 2009, the Grand Jury of Bronx County charged that defendant, while acting in concert with Christopher Martinez (his brother), committed the crimes of Attempted Robbery in the First Degree (four counts), Attempted Robbery in the Second Degree (two counts), Attempted Robbery in the Third Degree (two counts), Attempted Assault in the Second Degree, Attempted Grand Larceny in the Fourth Degree (two counts), Criminal Possession of a Weapon in the Fourth Degree, Attempted Petit Larceny (two counts), Attempted Criminal Possession of Stolen Property in the Fifth Degree (two counts), and Attempted Assault in the Third Degree. 1 THE TRIAL The People’s Case 2 In July of 2009, 45-year-old Armando Irizarry, Sr., had been living at a Housing Authority building on Havemeyer Avenue, in Apartment 14-A, in the Bronx for approximately seven years, during which time he would frequently see 1 Christopher Martinez was tried jointly with defendant, and was convicted of Attempted Robbery in the Third Degree (Penal Law §§ 110/160.05). On March 10, 2011, he was sentenced to an indeterminate term of imprisonment of from 1 to 3 years. The Appellate Division, First Department, affirmed his conviction on May 22, 2012. See People v. Christopher Martinez, 95 A.D.3d 677 (1st Dept. 2012). The Honorable Robert S. Smith granted leave to appeal on December 11, 2012. The co-defendant filed his brief on April 11, 2013. The People filed their brief on May 24, 2013. 2 Numerical references preceded by “A.” refer to the Appendix filed by defendant. 4 the defendants, Christopher Martinez (hereinafter referred to as “co-defendant”) and his brother, Selbin Martinez (hereinafter referred to as “defendant”), both of whom also lived in the building. Specifically, the co-defendant, who had a friend who lived in Apartment 14-C, spent a great deal of time outside of Mr. Irizarry’s apartment, and Mr. Irizarry would see him on a daily basis. Mr. Irizarry saw defendant several times a week at various locations in the building as well. Mr. Irizarry had also engaged both of the defendants in casual conversations over the years (A. 54, 95, 138, 140, 142). 3 On July 17, 2009, at approximately 4:00 p.m., Mr. Irizarry returned home from his job as a repairman, and decided to order Chinese food with his son, 23- year-old Armando Irizarry, Jr., who was visiting that day (A. 55-56, 165-67). After ordering their food, Mr. Irizarry gave his son $20, and at approximately 5:00 p.m., the two men went into the hallway outside Mr. Irizarry’s apartment to wait for the elevator so that they could pick up the food delivery in the lobby (A. 56-57, 167-68). As they waited in the well-lit hallway, two men, whom Mr. Irizarry recognized as defendant and co-defendant, emerged from an adjacent stairwell. The co-defendant, who wore a ski mask with his eyes exposed, was brandishing a 3 Armando Irizarry, Sr., will be referred to throughout as “Mr. Irizarry,” and his son, Armando Irizarry, Jr., will be referred to as “Mr. Irizarry, Jr.” Mr. Irizarry had previously incurred convictions for sale and possession of crack/cocaine. Although he initially stated that his convictions had been incurred ten or fifteen years ago, he subsequently recalled that he had been convicted within the past seven years (A. 55, 87-89). He had not used drugs in the past seven or eight years (A. 89). 5 silver gun, while defendant, also clad in a ski mask that exposed his eyes and mouth, wielded a baseball bat (A. 57-58, 61, 139-40, 170-71, 176). 4 Mr. Irizarry immediately recognized defendant by his tall, slim physique and his distinctive manner of walking; defendant was “really a person that [one] could distinguish from anybody” (A. 61). Believing that the defendants were engaging in a prank, Mr. Irizarry approached him, and said, “What’s up, Silence?”, a reference to defendant’s nickname. 5 In response, defendant pushed Mr. Irizarry, and told him to “give it up.” Realizing then that the defendants intended to harm him and his son, Mr. Irizarry removed from his own pocket a weapon consisting of a sock containing a billiard cue ball. 6 Defendant prepared to swing his bat at Mr. Irizarry, who responded by swinging his makeshift weapon at defendant. Defendant then switched his attention to Mr. Irizarry, Jr., who had been looking through the window to the elevator door, and was unaware that he was in any danger until defendant approached with his bat (A. 61-64, 171-72). 4 Mr. Irizarry, Jr., did not identify either of the defendants in court. Upon exiting the elevator that evening at about 5:50 p.m., Mr. Larry Krouser saw two men who were clad in hoods and masks. Because of how the men were attired, Mr. Krouser called the police (A. 287-88). 5 Mr. Irizarry, Jr., knew that Selbin Martinez was known within the building as “Silence.” (A. 171). 6 Mr. Irizarry carried this weapon with him for protection (A. 62-63, 92). 6 Mr. Irizarry then saw the co-defendant, armed with his gun. Wanting to protect his son from the gunman, Mr. Irizarry swung his cue ball at the co- defendant, causing the co-defendant to retreat by running backward in a distinctive fashion that Mr. Irizarry instantly recognized. Mr. Irizarry was well-acquainted with the co-defendant’s distinctive manner of retreating. On a daily basis, he would see the co-defendant congregating on the 14th floor of the building, and when Mr. Irizarry would walk his dog, the co-defendant often reacted to the dog’s presence by running away backward in fear (A. 58-60, 63-65, 138, 140-42, 144). When Mr. Irizarry noticed that defendant was swinging his bat in the direction of Mr. Irizarry, Jr., Mr. Irizarry grabbed his son and brought him into the stairwell, closing the door behind them. Mr. Irizarry then blocked the door with his foot as defendant tried to push his way into the stairwell. Fearing that the armed co-defendant would be able to access the staircase through another door, Mr. Irizarry then opened the door slightly and hit defendant squarely in the head with his cue ball. 7 During this encounter, defendant’s ski mask shifted positions, 7 Upon returning later to the apartment, the Irizarrys found a sunglass lens on the floor; upon discovering the lens, Mr. Irizarry realized that he had hit Selbin Martinez in the face with his cue ball (A. 78-80,180; People’s Exhibit Two). Later that evening, Mr. Irizarry gave the lens to Police Officer Gwen Balicki; according to testing performed by Forensic Biologist Ashley Rhodes, there was an insufficient amount of DNA on the lens to develop a profile (A. 226-28, 243-46). In the struggle, Mr. Irizarry, Jr., lost the twenty dollar bill that he had to buy the Chinese food. Although the victims later searched the hallway for the money, they could not find it (A. 78-79, 178). 7 allowing his face to become more visible. Indeed, his chin, nose, and cheek were clearly revealed to Mr. Irizarry. When defendant then collapsed onto the floor, Mr. Irizarry and his son were able to escape by running down the stairs. Once in the lobby, Mr. Irizarry called 911 and reported the crime (A. 63-66, 72-75, 174-78). 8 He told the 911 operator that he believed he knew the identities of the perpetrators (People’s Exhibit One), but because he lived in the same building as the defendants and was afraid of them, Mr. Irizarry did not initially provide their identities (A. 81). He later provided the police with the perpetrators’ names and address (A. 81). Police Officer Hairo Franco and his partner, Police Officer Dale Persuad, received notification of the crime at approximately 5:55 p.m., and responded to the Irizarry home at Apartment 14-A where he spoke to both Mr. Irizarry and his son. After receiving a description of the perpetrators, Officer Franco called police personnel from the “Viper” Unit, which was responsible for monitoring the security cameras throughout the Housing Authority building, and learned that no one fitting the descriptions had been seen leaving the premises. Officer Franco and his partner then canvassed the building, but could not locate the suspects. The victims were then transported to the 43rd Precinct, where they spoke to detectives. Officer Franco then returned to Apartment 13-G to look for defendant (A. 184-87). 8 The 911 call, made at 5:47 p.m., was admitted as People’s Exhibit One and played for the jury (A. 72-73; Stipulation: A. 364). 8 After being granted access to Apartment 13-G by the defendants’ mother, Officer Franco and other personnel canvassed the apartment, and found defendant hiding beneath a pile of clothes in a bedroom closet. When defendant emerged from underneath the clothing, Officer Franco noticed a fresh cut and a bump on his forehead. He was then placed under arrest (A. 187-91; People’s Exhibits Four and Five [photographs of Selbin Martinez]). Although the co-defendant was present in the apartment, he was not then placed under arrest; he was arrested subsequently by another officer (A. 192-93, 207). The Defense The co-defendant demonstrated for the jury his manner of walking and running backward (A. 303-305). 9 ARGUMENT POINT ONE DEFENDANT’S CONVICTION WAS SUPPORTED BY OVERWHELMING EVIDENCE. Mr. Irizarry was well-acquainted with the Martinez brothers, both of whom had lived in his building for several years. In fact, he saw defendant several times per week, knew him by his nickname, “Silence,” and described him as “really a person that [one] could distinguish from anybody.” Although the men wore masks when they tried to rob Mr. Irizarry and his son, defendant’s eyes and mouth were revealed, while the co-defendant’s eyes were visible. When he initially saw them, Mr. Irizarry addressed defendant by his nickname before realizing that his armed neighbors were serious in their attempt to rob him and his son. Turning the tables on his would-be robbers, Mr. Irizarry wielded a makeshift weapon that he kept with him for protection. During this part of the encounter, even more of defendant’s face became visible, as his mask shifted position. After squarely hitting defendant in the head with his weapon, Mr. Irizarry was able to escape to the lobby, where he called 911. Defendant was subsequently discovered nursing his fresh wound while hiding in the closet of his apartment, one flight beneath where the attack occurred. Ignoring the axiom that the credibility of a witness is a question for the fact finder, who is free to accept or reject all, some, or none, of a witness’s testimony 10 (People v. Scarborough, 49 N.Y.2d 364, 372 [1980]), and refusing to acknowledge the highly incriminating nature of his apprehension, defendant attacks the credibility of Mr. Irizarry. However, the evidence overwhelmingly supports the reliability of Mr. Irizarry’s identification of defendant, and not a shred of evidence casts doubt on his credibility. The standard of review in determining a legal sufficiency claim is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime have been proven beyond a reasonable doubt. People v. Delamota, 18 N.Y.3d 107, 113 (2011); People v. Rossey, 89 N.Y.2d 970 (1997); People v. Bleakley, 69 N.Y.2d 490, 495 (1987). Furthermore, all reasonable inferences must be drawn in the People’s favor. Delamota, 18 N.Y.3d at 113; People v. Conway, 6 N.Y.3d 869 (2006); People v. Ford, 66 N.Y.2d 428 (1985). The “availability of innocent inferences is not relevant to the sufficiency inquiry.” People v. Norman, 85 N.Y.2d 609, 620 (1995) (citing People v. Deegan, 69 N.Y.2d 976 [1987]). Moreover, great deference must be given to the credibility determinations of the fact finder, because of the fact finder’s opportunity to view the witnesses, hear the testimony, and observe the witnesses’ demeanor while giving testimony. See Bleakley, 69 N.Y.2d at 495; People v. Lesiuk, 81 N.Y.2d 485, 490 (1993). 11 Initially, defendant’s newly-crafted argument that Mr. Irizarry “incorrectly” described the bat-wielding perpetrator is not only unpreserved, but its presentation on this appeal is based only on defendant’s improper citation to an outside-the- record document that has been placed in defendant’s appendix. In the wake of Mr. Irizarry’s uncontradicted testimony that he recognized defendant based, in part, on his “slim and tall” physique, defendant, for the first time on appeal, posits that this description is rendered “incorrect” by a document that was never admitted into evidence, which describes defendant as being 5’9” tall and weighing 145 pounds (def.’s br., p. 34, citing to A. 520). Since defendant never included this argument in his motion for a trial order of dismissal, the claim is unpreserved. See CPL § 470.05(2); People v. Hawkins, 11 N.Y.3d 484, 492 (2008); People v. Gray, 86 N.Y.2d 10, 19 (1995). 9 More troubling is defendant’s breach of this Court’s rules governing the contents of an appendix, which require that the appendix conform with Civil Practice Law and Rules (“CPLR”) 5528 (22 NYCRR § 500.14[b], citing to CPLR 5528). The governing statute limits the contents of an appendix to matters in the 9 Aside from being unpreserved, this argument is without merit. Mr. Irizarry’s “slim and tall” description was a fleeting approximation, as he made no reference to defendant’s exact height during his testimony (A. 54-148). Furthermore, even if he had discussed defendant’s height in more detail, the “slim and tall” description cannot be deemed “incorrect” because it is subjective in nature, and was not based on any objective measure. Even if the Court considers defendant’s improper appendix submission (A. 520), there is nothing in the record to contradict Mr. Irizarry’s belief, unquestioned at trial, that at approximately 5’9” and 145 pounds, defendant is “slim and tall.” 12 “record on appeal.” By submitting the document reproduced at A. 520, defendant flouts this basic appellate precept, and his attempt to place the document before this Court as if it were an exhibit admitted in evidence cannot be countenanced. 10 See Barnes v. Lavallee, 38 N.Y.2d 754 (1975) (striking portions of respondent’s appendix and any “references to [the stricken] pages in respondent’s brief, without prejudice to an application to strike any portions of appellant's brief not based on the record on appeal”). Defendant’s remaining argument is based primarily on his disagreement with the jury’s decision to credit the testimony of Mr. Irizarry, who testified without contradiction that he was able to recognize defendant because of his long- standing familiarity with him. Defendant calls into question the certainty with which the victim was able to recognize him as the bat-toting assailant, but fails to recognize that all of the arguments in this regard were presented to the jury and rejected (see A. 305-18, 329-35). Moreover, the jury was on firm footing in making its assessment. Although defendant attempts to cast doubt upon Mr. Irizarry’s ability to identify defendant and the co-defendant based solely upon familiarity with their body movements (def.’s br., pp. 35-36), quite tellingly, he offers no support whatsoever for this argument. This is unsurprising, as the legal authority on this topic is to the 10 Respondent has submitted a motion to strike this inappropriate entry in defendant’s appendix. 13 contrary, especially when the victim has seen the defendant on prior occasions. See People v Lee, 221 A.D.2d 473 (2d Dept. 1995) (although the defendant wore a mask, the cab-driver victim recognized him based on his height and weight, as well as his voice, having picked him up as a fare on a prior occasion); People v. Lyons, 197 A.D.2d 708 (2d Dept. 1993) (even though the rapist’s face was covered, the victim was able to recognize his body and voice due to years of familiarity); cf., People v. Monette, 70 A.D.3d 1186 (3d Dept. 2010) (robbery conviction affirmed when the masked perpetrator was identified by a distinctive gait and voice). Here, Mr. Irizarry recognized defendant’s body shape and movements, and he also saw a portion of his face and heard his voice. As the prosecutor aptly noted in her summation, the wearing of a mask does not preclude identification, when the parties are neighbors who see each other every day (A. 399). In positing that his conviction was supported solely by Mr. Irizarry’s description of his body shape and movement, defendant glaringly omits any reference to the fact that he was arrested shortly after the crime with a cue-ball- sized bump on his head, matching perfectly the victim’s description of how he hit one of the would-be robbers squarely in the head with a cue ball. 11 He also asks 11 In his recitation of the facts, defendant mentions that Officer Franco observed a cut on his forehead when he was arrested, but suggests that this testimony was somehow rendered suspect because the officer stated in defendant’s pedigree card that defendant’s condition was normal (def.’s br., p. 12, citing A. 189, 204, 206). Defendant ignores that his arrest photograph was entered into evidence, allowing the jury to determine for themselves that defendant was injured 14 this Court to ignore that Mr. Irizarry saw part of his face and heard his voice, arguing that the witness did not affirmatively state that his identification was based on these two factors (def.’s br., p. 35). By offering this argument, he ignores that the jury was free to draw all reasonable inferences from the testimony. Certainly, it was reasonable to conclude that the fact that Mr. Irizarry heard defendant’s voice and saw part of his face served to confirm the accuracy of his identification, especially given the prior familiarity that the victim had with defendant. Defendant continues his attack on Mr. Irizarry’s consistent testimony by arguing that it was incredible for him to assert with such certainty that he could recognize defendant based on his body size and movement, and that his identification of defendant was uncorroborated by his son (def.’s br., pp. 35-36). However, these arguments present mere grist for the jury mill. See People v. Mateo, 2 N.Y.3d 383, 410 (2004) (great deference is to be afforded to jury’s opportunity to view the witnesses, hear the testimony, and assess demeanor); Bleakley, 69 N.Y.2d at 495 (same). In any event, it is well-settled that the testimony of an eyewitness need not be corroborated by another witness in order for a conviction to be based on legally sufficient evidence. See People v. Johnson, 57 N.Y.2d 969, 971 (1982) (testimony of single witness can constitute overwhelming evidence); People v. Devarez, 211 in the manner described by the victim (see People’s Exhibits Four and Five [photographs of defendant]). 15 A.D.2d 570 (1st Dept. 1995) (same). Notably, not only did Mr. Irizarry identify defendant at trial, but there was strong consciousness of guilt evidence against him as well, as he was discovered hiding from the police in the aftermath of the crime. And, as stated, his appearance after the crime, with his head injury matching that which Mr. Irizarry claimed to have inflicted upon the robber, further corroborated the accuracy of the identification. Many of defendant’s efforts to discredit Mr. Irizarry reflect misrepresentations of the record. For example, defendant claims that Mr. Irizarry “told a detective on the day of the [attempted robbery] that ‘none of the perpetrators said anything’ to him” (def.’s br., p. 34, citing to A. 109). And yet, Mr. Irizarry did not tell “a detective otherwise” (def.’s br., p. 36), but actually explained quite clearly that he could not remember if he made that statement (A. 109-10). Further, there is no evidence of a prior “confrontation” between defendant and Mr. Irizarry or that the attempted robbery may have been “drug- related” (def.’s br., p. 36). Indeed, when defense counsel asked Mr. Irizarry if there had been a prior confrontation, he answered “no” (A. 90). The verdict in no way suggests that the jury had any problem with Mr. Irizarry’s credibility or reliability. In any event, under a sufficiency analysis, because all reasonable inferences must be drawn in the People’s favor, defendant’s evaluation of Mr. Irizarry’s credibility does not deflate the People’s case. There is 16 simply no indication that after evaluating the evidence proffered, a rational trier of fact could have concluded that the elements of the crime had not been proven beyond a reasonable doubt. 17 POINT TWO THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT DECLINED TO ISSUE AN ADVERSE INFERENCE CHARGE REGARDING THE LOSS OF OFFICER FRANCO’S HANDWRITTEN COMPLAINT REPORT, AND IN ANY EVENT, ANY ERROR IN THAT REGARD WAS HARMLESS. During cross-examination of Officer Franco, defense counsel ascertained that the only paperwork he had filled out in the immediate aftermath of his initial discussions with the victims was his memo book, which contained no information regarding what the victim had told him regarding the identity of the robbers (A. 202-03). In addition to referring to the completed arrest report and complaint report, defense counsel also elicited that Officer Franco had filled out a handwritten complaint report (also known as a “scratch 61”), that he had placed it in a bin, separate from the other paperwork that would be turned over to the District Attorney’s Office, and that he was not in possession of this handwritten material (A. 201-03). Counsel for the co-defendant then briefly cross-examined Officer Franco, ascertaining that the co-defendant had been present when Officer Franco arrested defendant, yet the officer did not arrest him (A. 206-07). Subsequently, after the close of the People’s case, counsel for the co- defendant asked for the “scratch 61” that had been referred to during Officer Franco’s testimony. He made no reference to the completed complaint report, 18 which apparently had been turned over. When the prosecutor stated that the handwritten report had never been turned over to the District Attorney’s Office and that Officer Franco could not locate it, counsel joined the co-defendant’s counsel’s request that the court issue an adverse inference charge (A. 296). At the close of all the evidence, the court announced that it was declining to issue such a charge, stating, “There is a reason to be said he doesn’t have it any more [sic].” Counsel excepted, but did not explain what could have been in the “scratch 61” (the handwritten complaint report) that would be different from the finished version that he apparently possessed or how he was otherwise prejudiced (A. 362). Defendant now contends, as he did in the Appellate Division, that reversal is required because the trial court abused its discretion in declining to issue an adverse inference charge. According to defendant, he was prejudiced because he could not conduct a full cross-examination of the “main prosecution witnesses” (def.’s br., p. 19). This claim is unpreserved and without merit. Initially, defendant never raised before the trial court his current arguments that he was denied the opportunity for full cross-examination. Instead, defendant merely joined in the co-defendant’s request that the jury be charged that it could draw a negative inference from the absence of the handwritten notes (A. 296). Nor did defendant voice his current constitutional claims to the court below, rendering them unpreserved as well. See People v. Stephens, 84 N.Y.2d 990, 992 (1994) 19 (general rule requiring preservation applies to constitutional claims); Penal Law § 470.05(2). Defendant’s complaint on appeal cannot overcome his choice to remain silent relative to his claim that he was denied an opportunity for full cross- examination. In any event, this claim is without merit. In People v. Rosario, 9 N.Y.2d 286 (1961), this Court determined that the People have a duty to turn over a witness’ prior recorded statements. In People v. Consolazio, 40 N.Y.2d 446, 453 (1976), this Court explained why a Rosario rule violation constituted error to which harmlessness analysis could not apply. Accord People v. Ranghelle, 69 N.Y.2d 56 (1986). In response to the drastic consequences of this automatic reversal rule, the legislature passed CPL § 240.75, which states: The failure of the prosecutor or any agent of the prosecutor to disclose statements that are required to be disclosed under subdivision one of section 240.44 or paragraph (a) of subdivision one of section 240.45 of this article shall not constitute grounds for any court to order a new pre-trial hearing or set aside a conviction, or reverse, modify or vacate a judgment of conviction in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial or other proceeding; provided, however, that nothing in this section shall affect or limit any right the defendant may have to a re-opened pre-trial hearing when such statements were disclosed before the close of evidence at trial. The purpose of CPL § 240.75 was “to overturn the so-called ‘Ranghelle Rule.’” See Peter Preiser, 1985 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL § 240.75. As a result, if the disclosure of Rosario material is 20 delayed past the prosecutor’s opening statements, or there is a failure to disclose, a defendant must show that there is a “reasonable possibility that the non-disclosure materially contributed to the result of the trial” before the conviction may be reversed. CPL § 240.75; see People v. Wolf, 284 A.D.2d 102, 103-04 (1st Dept. 2001), aff’d, 98 N.Y.2d 105 (2002). Because CPL § 240.75 does not entitle him to an automatic reversal or vacatur for a Rosario violation, defendant attempts to create a new automatic reversal rule (def.’s br., p. 23). Under this rule, if a court declines to give an adverse inference instruction or impose some other sanction, there must be a reversal. Such a rule is unwarranted and it strips a trial court of the discretion it must have when faced with Rosario violations that are of the most de minimus sort. In People v. Wallace, 76 N.Y.2d 953 (1990), this Court established that a sanction is warranted when there has been a Rosario violation and prejudice has resulted. See Wallace, 76 N.Y.2d at 954-55. In Wallace, an undercover police officer wrote the defendant’s description as he was broadcasting it over the radio and the arresting officer wrote the description as he received the broadcast. Id. at 955. After driving by the arrest scene to identify the defendant, the undercover officer made two additional drug purchases and later prepared “buy” reports for all three purchases that day. Id. Both officers discarded the written descriptions after the 21 defendant’s arrest. Id. This Court held that the defendant had been prejudiced and the trial court should have imposed a sanction. Wallace, 76 N.Y.2d at 955. In Wallace, where identification was an important issue, this Court expressed concern that the missing notes, prepared while the crime was under way, would not have necessarily been replicated in the disclosed “buy” report that was prepared after the defendant’s arrest. Here, however, the record discloses that Officer Franco placed his handwritten complaint report in a bin at his precinct, a typewritten copy of the complaint report was prepared, and both documents were prepared after defendant’s arrest (A. 201-02, 204-05). 12 Hence, there was no reasonable possibility of any material variance that could have been exploited on cross-examination, and defense counsel never argued to the trial court anything similar to the argument presented in Wallace. Because the missing report did not prejudice defendant, the trial court was not required to impose a sanction. Had defendant raised his current argument before the trial court, the People would have responded that the scratch 61 is merely used to type a final copy, which was given to defendant and used during cross-examination (A. 205). This probably explains why defense counsel’s application at trial recited no 12 Because the People confirmed that the handwritten complaint report was not turned over (A. 296), the cross-examination by defense counsel regarding the contents of the complaint report clearly references the typewritten copy (A. 204-05). 22 specification of prejudice, but, instead, sounded as though he was seeking a sanction merely as per se punishment for the loss of the handwritten copy (A. 296). Defendant’s current factual predicate for his prejudice argument is that the “scratch 61 would have been very useful in cross-examining [Mr.] Irizarry’s identification of [defendant] and his claim that someone told him to ‘give it up.’” (def.’s br., p. 26). Defendant again misrepresents the record in attempting to explain why this handwritten complaint report would have proven useful. Contrary to defendant’s claim, Mr. Irizarry never admitted that his testimony was a lie (def.’s br., p. 20). Mr. Irizarry first answered that he “never” sold drugs and then immediately admitted that he had sold drugs a “long time ago” (A. 90-91). Further, Mr. Irizarry never acknowledged that the complaint “contradicted” his testimony that defendant swung a bat at him during the attempted robbery (def.’s br., p. 20). Indeed, he maintained his honesty and this exchange showed, at most, that the criminal complaint may not have contained every single factual detail (A. 114-19), which is certainly not a unique circumstance. In any event, defendant fails to articulate precisely how the absence of the handwritten complaint report affected his defense. He offers three speculative “examples” of information the scratch 61 may have contained (def.’s br., p. 29). These crafted “examples” fail to advance defendant’s argument. 23 Defendant first claims that the handwritten complaint report might have suggested that the defendants said nothing to Mr. Irizarry (def.’s br., p. 29). With this argument, defendant undercuts his own summation. Defense counsel never argued on summation that the phrase “give it up,” was never uttered, but merely that it is “ambiguous” and “can mean a lot of different things” (A. 387). Moreover, defendant admits that he was able to cross-examine Mr. Irizarry on this topic, further undermining any claim of prejudice (A. 109-11). Defendant’s second “example” claims that Mr. Irizarry could have named “someone else as an assailant” initially, rather than defendant (def.’s br., p. 29). Defendant maintains that “the defense was only able to discover changes in [Mr.] Irizarry’s account of events . . . using Rosario material that the State properly preserved” (def.’s br., p. 28). Yet, this misleading statement ignores that Mr. Irizarry testified on direct examination about his failure to identify the defendants immediately (A. 81). Moreover, it was uncontested that the 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, which was turned over to defendant and which formed the basis for a portion of defendant’s cross- examination (A. 202-03). Indeed, this memo book contained no information about the portions of Mr. Irizarry’s testimony that are now questioned by defendant (def.’s br., p. 26-28). Accordingly, his current claim of prejudice rings hollow. 24 Furthermore, it was undisputed that the victim initially told both the 911 operator and then Officer Franco that he was robbed by two men who were clad in black; nor was it contested that, despite that he claimed to have immediately recognized the defendants, he did not supply their names to either the 911 operator or to Officer Franco. Thus, it is still unclear how defendant would have benefited from the handwritten report as opposed to the typed report. Defendant cannot show that there is a reasonable possibility that the non-disclosure of the scratch 61 materially contributed to his conviction, where the key facts were not at issue and where the defense was fully able to question Mr. Irizarry on his failure to immediately provide the police with the suspects’ names. Finally, defendant claims that the scratch 61 could have stated that Mr. Irizarry once had a conflict with one of the assailants, which “would have supported defendant’s theory that this was not an attempted robbery” (def.’s br., p. 29). First, it should be noted that defendant misstates the record here. Defendant claims that Mr. Irizarry suggested the attempted robbery was “drug-related” (def.’s br., p. 29, citing to A. 90-92), but the record reveals that Mr. Irizarry never said anything that could be construed as such. Rather, he discussed his past involvement with drug sales and his reason for carrying a weapon (A. 90-92). Nonetheless, this “example” is confounding because defendant’s theory did not 25 focus on whether this incident was an attempted robbery, but on Mr. Irizarry’s credibility and identification of the defendants (A. 365-88). While defendant claims that he was not able to fully cross-examine Mr. Irizarry, he was given the full opportunity to question the officer about these “examples” (A. 42-45, 55-59). And based on this cross-examination, counsel was able, during summation, to cast aspersion on Mr. Irizarry’s credibility. Indeed, counsel constructed his entire argument on that premise (A. 366-88). This weighs strongly against a finding of prejudice. In People v. Haupt, 71 N.Y.2d 929, 931 (1988), this Court held that when a “defendant claims that the loss of the evidence deprived him of a fair trial, the court must consider a number of factors including the proof available at trial, the significance of the missing evidence and whether the loss was intentional or inadvertent.” Haupt, 71 N.Y.2d at 931. Here, as in Haupt, the destroyed scratch 61 had no relevance on the issue of Mr. Irizarry’s credibility because of Mr. Irizarry’s candid admission of his failure to immediately identify the defendants and defense counsel’s ample cross-examination of Mr. Irizarry’s perceived inconsistencies (A. 84-91, 93-100, 108-25). See id. 13 Defendant relies heavily on People v. Martinez, 71 N.Y.2d 937 (1988), in arguing that an adverse inference charge was required here. However, for several 13 Although the defendant in Haupt sought dismissal, it is important to note that this Court affirmed an order of the Appellate Division that had found that neither dismissal nor “the imposition of some lesser sanction” was warranted. See People v. Haupt, 128 A.D.2d 172, 173 (2d Dept. 1987). 26 reasons, Martinez is unhelpful to defendant. In Martinez, it was discovered at a Wade hearing that a robbery victim had provided a description of the robber to police officers at the crime scene. This was the first indication that Rosario material may have existed in the form of the notes taken by the officer on the scene; accordingly, a hearing was held at which it was determined that an officer had taken notes, on either a memo book or on a scratch 61, neither of which could be located. Moreover, the officer who took the notes was unavailable to testify at trial. Based on these facts, the trial court denied the defense’s request to preclude the victim’s testimony and instead issued an adverse inference charge. Finding that the trial court acted appropriately, this Court affirmed. However, to the extent that defendant argues that Martinez requires reversal (def.’s br., pp. 22-23), he is mistaken. Initially, Martinez was decided before the Legislature enacted CPL § 240.75, which placed squarely on the defendant the burden to show “that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial.” CPL § 240.75. In fact, nearly every case cited by defendant predates the enactment of this controlling statute (def.’s br., pp. 21-23). 14 For example, defendant’s citations to People v. Wallace, 76 N.Y.2d 953 (1990) and People v. Joseph, 86 N.Y.2d 565 (1995) (def.’s br., pp. 21-22) with their allusions to material 14 See 2000 Sess. Law of N.Y., ch. 1, § 48 (enacting CPL § 240.75, effective February 1, 2001). 27 that “would have been helpful to [the defense],” are inapposite since the burden that defendant must shoulder is much larger than the burden discussed in those cases. Here, defendant must establish not that the material “would have been helpful,” but that the nondisclosure raised a “reasonable possibility” that the verdict would have been affected. Nevertheless, Martinez did not dictate that an adverse inference charge be given in all cases where Rosario material may have been lost. To the contrary, the Martinez Court reiterated that the determination of an appropriate sanction is within the sound discretion of the trial court. Martinez, 71 N.Y.2d at 940; see People v. Jenkins, 98 N.Y.2d 280, 284 (2002). The adverse inference instruction in Martinez was warranted where the officer who heard the victim’s initial description was unavailable to testify and where there was no disclosure of any of the victim’s initial statements to the police. By contrast, here, Officer Franco testified, and, although the handwritten complaint report was not turned over, the defense was in possession of the only written record that Officer Franco made in the immediate aftermath of interviewing the victim: the memo book. 15 Additionally, the defense was in possession of the completed, “typed” complaint report, with counsel having referenced that document on cross-examination (A. 200-01). Thus, Martinez provides no basis for 15 Officer Franco’s testimony clearly states that the scratch 61 was filled out sometime after the arrest of the co-defendant (A. 201-02). 28 concluding that the trial court abused its discretion here. If it did, one would not expect to see the consistent affirmance of the use of discretion to deny sanctions in appropriate cases. See People v. Brown, 71 A.D.3d 1043 (2d Dept. 2010) (trial court did not abuse its discretion in declining to issue any sanction against the People for the loss of the draft complaint report); People v. Norris, 34 A.D.3d 501 (2d Dept. 2006) (no sanction was warranted for the loss of an officer’s notes and memo book where the defendant failed to establish a reasonable possibility that non-disclosure affected the verdict); People v. Ward, 282 A.D.2d 819, 822 (3d Dept. 2001) (“CPL 240.75, effective February 1, 2001, abrogated the “per se” rule established in Ranghelle”); People v. Sandore, 175 A.D.2d 660 (4th Dept. 1991) (no sanction warranted for a police investigator’s purposeful destruction of his notes from a post-arrest interview with defendant). Defendant also relies upon this Court’s recent decision in People v. Handy, __ N.Y.3d __, 2013 N.Y. Slip Op. 02103 (Mar. 28, 2013), comparing this Court’s application of the “reasonable possibility” standard in Handy to the issue in this case (def.’s br., pp. 23-24). This comparison is misplaced. In Handy, this Court was evaluating the value of lost video surveillance of the crime, part of which depicted the encounter between the defendant and one of the men he was accused of assaulting. See Handy, __ N.Y.3d __, 2013 N.Y. Slip Op. 02103. Such 29 evidence can hardly be equated with a copy of a report as to which defendant has the benefit of the version that was typed from it. Here, by contrast, the Court is being asked to review a trial court’s ruling where the defense was still able to fully establish through cross-examination that the witness did not name defendant as one of the perpetrators until hours after the crime. There is a clear difference in factual circumstances. In Handy, this Court analyzed decades of common law regarding lost physical evidence before concluding that, because the evidence was “reasonably likely to be of material importance,” the defendant was entitled to an adverse inference charge. See Handy, __ N.Y.3d __, 2013 N.Y. Slip Op. 02103. Conversely, here, there is nothing approaching lost physical evidence of material importance. Thus, even if this Court utilized the Handy standard, defendant still could not prevail. In a strained attempt to avoid the application of CPL § 240.75 on appeal, defendant also interposes one of the most technical of appellate arguments, namely that the application of CPL § 240.75 here would contravene CPL § 470.15(1). This is a newly minted argument that was never made in the Appellate Division. Indeed, in that court, defendant strove to have his unpreserved argument of prejudice considered as the basis for a reversal. CPL § 240.75 was enacted, in large measure, to govern appellate review of Rosario violations, which renders defendant’s reliance on People v. Concepcion, 30 17 N.Y.3d 192 (2011), and People v. Lafontaine, 92 N.Y.2d 470 (1998), inapposite. Proper application of CPL § 240.75 on appeal requires that appellate courts examine the record for evidence of a “reasonable possibility that the non- disclosure materially contributed to the result of the trial.” CPL § 240.75. That is exactly what the Appellate Division did here, and it found that defendant did not meet this standard. See Martinez, 100 A.D.3d at 537 (citing Martinez, 95 A.D.3d at 677). Defendant’s position that the Appellate Division violated CPL § 470.15(1) when it examined the issue of the harmlessness of the Rosario violation and the lack of a sanction is confounding in light of the fact that defendant argued in his brief below that he was prejudiced by the trial court’s failure to give an adverse inference instruction for the Rosario violation (def.’s App. Div. br., pp. 39- 40). 16 In any event, the precepts expressed in cases such as Lafontaine and Concepcion have no application where an appellate court affirms a judgment on the basis of the harmlessness of the purported error. See People v. Thomas, __ N.Y.3d __, 2013 N.Y. Slip Op. 03934 (June 4, 2013) (even if alternative grounds for affirmance not permissible under Lafontaine and Concepcion, judgment affirmed on basis of harmless error analysis). 16 Defendant does not detail this argument in his brief, but refers to the co-defendant’s discussion of Lafontaine and Concepcion, implying his adoption of this argument (def.’s br., p. 25). 31 CPL § 240.75 is essentially a codification of a harmless error standard. In making a determination under that statute, an appellate court will, of course, consider whether the absence of a sanction created a “reasonable possibility that the non-disclosure materially contributed to the result of the trial.” CPL § 240.75. Defendant’s proposed rule would create a very artificial bifurcation, one in which the lack of a sanction precludes application of the harmless error standard contained in CPL § 240.75. Even if defendant’s argument regarding the non-application of CPL § 240.75 had any merit, that would not prevent an appellate court from determining that the failure to deliver an adverse inference instruction, if error, was harmless under a common-law standard. See People v. Crimmins, 36 N.Y.2d 230, 241 (1975) (“every error of law . . . is . . . deemed to be prejudicial and to require a reversal, unless that error can be found to have been rendered harmless by the weight and the nature of the other proof”). “An error of law may be found harmless . . . where there is no ‘significant probability . . . that the jury would have acquitted the defendant had it not been for the error.’” People v. Arafet, 13 N.Y.3d 460, 467 (2009) (quoting Crimmins, 36 N.Y.2d at 241–242). Here, Mr. Irizarry’s personal relationship with and his identification of defendant, together with the co- defendant’s arrest and injury, were overwhelming evidence of defendant’s guilt. Because the failure to give an adverse instruction for a Rosario violation does not 32 constitute an error of constitutional dimensions, defendant can only prevail if the purported error created a significant probability that the jury would have acquitted defendant. See Crimmins, 36 N.Y.2d at 242. Defendant has not established that probability. Thus, the trial court’s failure to deliver an adverse inference charge is nothing more than harmless error. In sum, since defendant has failed to establish a reasonable possibility that the non-disclosure of the handwritten complaint report or the lack of an adverse inference instruction materially contributed to the verdict, reversal of his conviction is precluded by CPL § 240.75. 33 POINT THREE THE TRIAL COURT’S IDENTIFICATION CHARGE WAS PROPER IN ALL RESPECTS. Mr. Irizarry had known defendant for seven years and would see him in their building several times a week. Mr. Irizarry testified that, during the attempted robbery, he recognized defendant immediately upon seeing him, based on defendant’s manner of walking and the distinctive shape of his body (A. 59-61). He also described to the jury how defendant spoke to him, and how a portion of defendant’s face became revealed to him during the struggle (A. 62, 66). Based on this testimony, the court charged the jury, as part of its identification charge, that “[w]hen [Mr. Irizarry] testified about Selbin Martinez he said he recognized his manner of walking[,] body [] shape and saw a portion of his face.” Defendant contends that, because Mr. Irizarry did not specifically testify that his recognition of defendant was based upon seeing a portion of his face, the trial court erred in making any reference to that fact in its charge (A. 433). 17 This claim is based on a misconstruction of what the court said. Because the charge accurately recounted the evidence and was fair and balanced, defendant’s claim must be rejected. While defendant claims that the trial court “erroneously instructed the jury that [Mr.] Irizarry made a facial identification” (def.’s br., pp. 31-32), the court 17 Defendant again improperly relies on what he calls “the arrest report,” which is not a part of the record and has no place in the appendix (def.’s br., p. 31, citing to A. 520). 34 said no such thing (A. 312-13). Prior to giving the contested charged, the trial court had elicited the input of both sides. After defense counsel objected to the prosecution’s version of what Mr. Irizarry’s testimony meant, the court promised that it would fashion a charge that was fair to both sides (A. 280). When defendant raised this argument following the charge and claimed that the charge indicated that Mr. Irizarry “identified [defendant] . . . in part, because he saw a portion of [defendant’s] face when the ski mask was raised” (A. 312), the court corrected defendant, reminding him that the charge didn’t “say that he recognized him.” Indeed, the court actually said that the witness identified defendant on the basis of his walk and body shape. The witness did say he saw a portion of defendant’s face (A. 66), so there was nothing inaccurate about the court saying so. What defendant is attempting to do is re-cast the trial court’s statement as though it read: “he said he recognized his manner of walking, body shape, and his face.” Of course, this is the very misconstruction that the trial court refuted (A. 312). CPL § 300.10(2), which governs the content of the court’s charge to the jury, requires the court to “so far as practicable, explain the application of the law to the facts.” It also empowers the court to “marshal or refer to the evidence” in explaining the application of the law to the facts provided that the court does not do so “to any greater extent than is necessary.” CPL § 300.10(2). The “critical issue” on appellate review is whether such marshaling of, or reference to, the 35 evidence was so prejudicial as to deny the defendant a fair trial (see People v. Culhane, 45 N.Y.2d 757, 758 [1978]), keeping in mind that a trial court is not required to explain all the contentions of the parties. People v. Saunders, 64 N.Y.2d 665, 667 (1984). In making an assessment of whether a marshaling charge is unfair, the charge must be read as a whole, and not in piecemeal fashion. People v. Hudson, 251 A.D.2d 124 (1st Dept. 1998) (read as a whole, the charge made clear that the court had no opinion on the evidence; the court fairly set forth the facts in the context of explaining the application of the law to the facts). In rendering its identification charge, the court accurately recounted the evidence that the People set forth to establish defendant’s identity. Indeed, it did so in a manner that was quite favorable to defendant, as no mention of defendant’s voice was made, despite that, after the victim testified that he recognized defendant (his neighbor) as the bat-wielding robber based on his unique body shape and his manner of walking, he testified that defendant said, “Give it up” (A. 62). Similarly, when asked “when [defendant] was coming at you at the door of the stairwell, can you describe how his ski mask was?”, the victim described how he saw defendant’s face, from his chin up through his nose and cheek (A. 66). Thus, there is no question that the court accurately charged that the victim alleged that he saw defendant’s face (A. 433). 36 Moreover, viewed as a whole, the identification charge was unbiased. The court charged the jurors that they were to determine “certainty of the identification,” and that they must “therefore examine with great care all the evidence on the issue of identity.” They were reminded of the People’s burden to establish “beyond a reasonable doubt that the defendants are the right men, the men who in fact committed the charged crimes, otherwise you must acquit them.” Despite that there was also circumstantial evidence of defendant’s guilt (his hiding in the closet when the police arrived at his home), the court charged that “the only evidence which in any way establishes or tends to establish that the defendants are the right men, in other words, the actual perpetrators of the charged crimes, is the testimony of the complaining witness” (A. 433). After accurately recounting Mr. Irizarry’s testimony regarding defendant, the court reiterated, “[a]part from his testimony that the defendants are the right men there is no other evidence whatsoever which identifies the defendants as the perpetrators.” Then, stressing to the jurors the critical nature of their task, the court instructed, “[o]ur system of justice is deeply concerned that no person who is innocent of a crime be convicted of it. In order to avoid that [,] juries must consider [] the identification testimony with greater care, especially when there is no facial identification and the only evidence identifying defendants as the perpetrators comes from one witness . . .” (A. 433-34). 37 Thus, this charge did not in any manner “bolster” the People’ case and certainly was not biased against defendant. Cf., Saunders, 64 N.Y.2d at 667 (court’s marshaling of evidence “did not purport to alter the burden of proof”); Hudson, 251 A.D.2d at 124 (charge as a whole “made clear . . . that the court had no opinion on the evidence”); People v. Woods, 199 A.D.2d 176 (1st Dept. 1993) (marshaling was not unbalanced where the court “neither expressed nor implied any opinion” and “repeatedly made clear” that the jurors’ recollections controlled). Here, the court issued a lengthy identification charge that consistently reminded the jurors that the identification of the defendants was based largely on the victim’s observation of their bodies. Defendant relies solely upon People v. Bell, 38 N.Y.2d 116, 120-21 (1975), People v. DeJesus, 42 N.Y.2d 519, 524 (1977), and People v. Jamison, 47 N.Y.2d 882, 883-84 (1979) to further his claim (def.’s br., p. 32-33), but each case is distinguishable. In Bell, this Court discussed at length the prejudicial nature of the trial court’s charge regarding a prosecution witness’s credibility but did not discuss identification issues in any respect. See Bell, 38 N.Y.2d at 120-23. In DeJesus, this Court analyzed the trial court’s inappropriate “denigration” of defense counsel and its effect on the proceedings. See DeJesus, 42 N.Y.2d at 521-24. And in Jamison, this Court found that “the court intervened in the proceedings evenhandedly, rather infrequently and, so far as appears, only when necessary to 38 aid the jury in understanding the legal and factual issues presented.” Jamison, 47 N.Y.2d at 884. None of these cases involves facts even remotely similar to the instant case. They summarize undisputed principles of New York State law and do nothing to advance defendant’s claim. Since the court’s charge herein gave a balanced charge that accurately referred to the testimony of the victim and explained in evenhanded fashion the legal concepts involved in assessing the identification testimony, defendant’s argument must be rejected. Finally, any error in the court’s identification charge is harmless in light of the overwhelming evidence of defendant’s guilt (see Point One, supra). See Crimmins, 36 N.Y.2d at 230; see also People v. Kello, 96 N.Y.2d 740 (2001) (utilizing non-constitutional harmless error standard where no claim of constitutional violation has been preserved). 39 CONCLUSION THE JUDGMENT SHOULD BE AFFIRMED IN ALL RESPECTS. Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent By: _______________________ RAVI KANTHA Assistant District Attorney JOSEPH N. FERDENZI NANCY D. KILLIAN RAVI KANTHA Assistant District Attorneys Of Counsel June 10, 2013 40 PRINTING SPECIFICATION STATEMENT This brief was prepared on a Microsoft Word processing system, in the Time New Roman typeface, font size 14 in the text and headings, and size 12 in the footnotes, and it contains 8,114 words as counted by the Microsoft Word counting system.