The People, Respondent,v.Antonio Rodriguez, Appellant.BriefN.Y.March 19, 2013To be Argued by: DAVID TOUGER (Time Requested: 30 Minutes) New York County Indictment No. 2972/08 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – MIGUEL MEJIAS, Defendant-Appellant. –––––––––––––––––––––––––––––– THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – ANTONIO RODRIGUEZ, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT ANTONIO RODRIGUEZ PELUSO & TOUGER, LLP Attorneys for Defendant-Appellant Antonio Rodriguez 70 Lafayette Street New York, New York 10013 Tel.: (212) 608-1234 Fax: (212) 513-1989 Date Completed: November 6, 2012 Indictment No. 2972/08 Indictment No. 2972/08 TABLE OF CONTENTS ARGUMENT ............................................................................................................. 1 POINT I ...................................................................................................................... 1 TRIAL COURTS DO NOT HAVE THE DISCRETION TO REFUSE TO CONDUCT INDIVIDUAL INQUIRIES ON THE BASIS THAT THEY DO NOT WANT TO ISOLATE JURORS, AND EVEN IF THEY DO HAVE SUCH DISCRETION, THE TRIAL COURT SHOULD HAVE CONDUCTED AN INDIVIDUAL INQUIRY HERE .............................................. 1 A. Trial Courts do not have the discretion to not conduct an individual inquiry where there is some evidence that jurors prematurely discussed the evidence and prematurely formed conclusions, on the basis that Trial Courts do not want to “isolate” jurors ................................ 2 B. Even if the Trial Court did have the discretion to not conduct an individual inquiry, it should have conducted one here ................................ 7 C. The prosecution’s preservation argument is meritless ................................. 9 POINT II .................................................................................................................. 11 THE PROSECUTION’S THEORY THAT TESTIMONY ABOUT THE INTERNATIONAL DRUG TRADE OF HIGH-LEVEL NARCOTICS DEALERS AND A MAP OF SOUTH AMERICA SHOULD BE ADMITTED INTO EVIDENCE IN CASES INVOLVING LARGE QUANTITIES OF NARCOTICS REGARDLESS OF WHETHER DEFENDANTS HAD ANY CONNECTION WITH SUCH A NETWORK OR SOUTH AMERICA IS UNWORKABLE AND DANGEROUS ..................... 11 CONCLUSION ........................................................................................................ 12 ii TABLE OF AUTHORITIES New York Court of Appeals Cases People v. Buford, 514 N.Y.S.2d 191, 69 N.Y.2d 290, 506 N.E.2d 901 (1987) .................................................................................passim People v. Clark, 597 N.Y.S.2d 646, 81 N.Y.2d 913, 613 N.E.2d 552 (1993) ........... 5 People v. Rodriguez, 524 N.Y.S.2d 422, 71 N.Y.2d 214 (1988) .............................. 4 Appellate Division Cases People v. Brown, 859 N.Y.S.2d 175, 52 A.D.3d 248 (1st Dep’t 2008) ..................... 6 People v. Cosby, 708 N.Y.S.2d 58, 271 A.D.2d 353 (1st Dep’t 2000) ...................... 6 People v. Gonzalez, 648 N.Y.S.2d 78, 232 A.D.2d 204 (1st Dep’t 1996) ................. 6 People v. Levy, 623 N.Y.S.2d 606, 213 A.D.2d 427 (2d Dep’t 1995)...................... 3 People v. Matiash, 602 N.Y.S.2d 977, 197 A.D.2d 794 (3d Dep’t 1993) ................. 6 People v. McClenton, 630 N.Y.S.2d 290, 213 A.D.2d 1 (1st Dep’t 1995) ........ 7, 8, 9 People v. Ordenana, 795 N.Y.S.2d 582, 20 A.D.3d 39 (1st Dep’t 2005) .......... 7, 8, 9 People v. Porter, 909 N.Y.S.2d 486, 77 A.D.3d 771 (2d Dep’t 2010) ...................... 4 People v. Thomas, 601 N.Y.S.2d 608, 196 A.D.2d 462 (1st Dep’t 1993) ................. 4 People v. Torres, 670 N.Y.S.2d 184, 248 A.D.2d 167 (1st Dep’t 1998) .................... 4 People v. Triplett, 758 N.Y.S.2d 493, 305 A.D.2d 230 (1st Dep’t 2003) .................. 5 Statutes Criminal Procedure Law Section 470.05(2) ............................................................ 10 1 ARGUMENT POINT I TRIAL COURTS DO NOT HAVE THE DISCRETION TO REFUSE TO CONDUCT INDIVIDUAL INQUIRIES ON THE BASIS THAT THEY DO NOT WANT TO ISOLATE JURORS, AND EVEN IF THEY DO HAVE SUCH DISCRETION, THE TRIAL COURT SHOULD HAVE CONDUCTED AN INDIVIDUAL INQUIRY HERE. The prosecution erroneously contends that, “the decision about how to investigate allegations of juror misconduct is entrusted to the sound discretion of the trial court.” (Respondent’s Brief, p. 27). That is not the rule. The rule is that Trial Courts do not have such discretion and instead must question each allegedly dischargeable juror individually in camera in the presence of the attorneys and defendant in a “probing and tactful” inquiry. See People v. Buford, 514 N.Y.S.2d 191, 69 N.Y.2d 290, 299, 506 N.E.2d 901 (1987). The only exception to the rule is the unusual case involving an obviously trivial matter where the Trial Court, the attorneys, and the defendant all agree that there is no possibility that the juror's impartiality could be affected and that there is no reason to question the juror. Id. at 299 n. 4. Because the Trial Court refused to conduct an individual inquiry here and thus did not follow the rule, and it is indisputable that the exception to the rule does not apply, the Trial Court erred and Mr. Rodriguez’s conviction must be reversed. 2 Even if the Trial Court did have the discretion to not conduct an individual inquiry, the Trial Court abused that discretion here because the circumstances justified an individual inquiry. After the close of evidence but before summations, a juror wrote a note that read, “We want to know how/when and under what pretext Junior met Miguel Mejias.” [A-215]. This note was at least some evidence that two jurors—hence “we”—prematurely discussed the evidence connecting Junior Lantigua to Miguel Mejias and prematurely agreed with the prosecution’s theory that, as the prosecution puts it, “pretext was the undergirding of the interactions” between the defendants. (See Respondent’s Brief, p. 28). Of course, this evidence does not definitively establish the exact time, place, and scope of the jurors’ premature discussion and conclusion, but that is not the point. The point is that the note was some evidence of premature discussion and conclusion, and where there is some evidence of jurors’ premature discussion or conclusion, Trial Courts should conduct an individual inquiry. A. Trial Courts do not have the discretion to not conduct an individual inquiry where there is some evidence that jurors prematurely discussed the evidence and prematurely formed conclusions, on the basis that Trial Courts do not want to “isolate” jurors. Here, the Trial Court refused to conduct an individual inquiry of a juror who authored a note indicating that at least two jurors prematurely deliberated and formed conclusions, on the basis that it did not want to “isolate” jurors. [A-221]. 3 Earlier in the trial, the Trial Court conducted an individual inquiry of a malodorous juror who felt humiliated by the process. [A-77-105]. With that in mind, the Trial Court concluded: “I don’t want what happened before, to isolate particular jurors, I think it would be best to say what happened and tell the jury just talk about it and say they cannot talk about the case, if anyone has, they should bring it to my attention.” [A-221]. Instead of conducting an individual inquiry of the juror who authored the note, the Trial Court asked the jurors in a group in open court to raise their hands if they had discussed the evidence. [A-222]. This was error, because Trial Courts do not have the discretion to conduct non-individual inquiries in lieu of individual ones on the basis that they do not want to isolate jurors. See People v. Buford, 69 N.Y.2d at 299 n. 4. Individual inquiry is the sine qua non of the inquiry mandated by Buford. The inquiry must be conducted away from the rest of the jury—in camera—with only the judge, the attorneys, the defendant, and the juror present. See id. at 299; see also People v. Levy, 623 N.Y.S.2d 606, 213 A.D.2d 427 (2d Dep’t 1995)(non- in camera inquiry contravenes Buford requiring reversal). The inquiry must also be “probing and tactful,” i.e., the Trial Court should evaluate the nature of what the juror has seen, heard, or has acquired knowledge of, assess its importance and its bearing on the case, and carefully consider the juror's answers and demeanor to ascertain whether her state of mind will affect her deliberations. People v. Buford, 4 69 N.Y.2d at 299; see People v. Porter, 909 N.Y.S.2d 486, 77 A.D.3d 771 (2d Dep’t 2010)(non-probing inquiry fell short of satisfying Buford requiring reversal). These requirements enable Trial Courts to better discern the truth of what a juror saw or did or acquired knowledge of, because when a juror is isolated from the rest of the jury, Trial Courts can more effectively ask probing questions of that juror and carefully consider that juror’s answers and demeanor. In addition, the juror can more effectively respond to the Trial Court’s questions without the unease of admitting wrongdoing or implicating another in wrongdoing in a group. See People v. Thomas, 601 N.Y.S.2d 608, 610, 196 A.D.2d 462 (1st Dep’t 1993)(Buford requirements designed in part to prevent uneasiness in admitting misconduct in open court). Of course, after the juror is isolated from the jury, the Trial Court does have some discretion in fashioning the particular questions to ask the juror, but even then this discretion is not unlimited, because the questions should be probative of the unique facts of the case. See People v. Rodriguez, 524 N.Y.S.2d 422, 425, 71 N.Y.2d 214 (1988)(Trial Court generally accorded latitude in making findings necessary to determine whether juror is grossly unqualified but should conduct in camera, probing and tactful inquiry into the unique facts of each case). Accordingly, Trial Courts do not have the discretion to conduct non- individual inquiries on the basis that they do not want to isolate jurors, because juror isolation is required. And while isolation may cause a juror some temporary 5 embarrassment, it is a small price to pay to effectively ensure a defendant’s fundamental right to be tried by an impartial jury. The cases cited by the prosecution in support of a discretionary standard are misplaced. Just because “each case must be evaluated on its own unique facts to determine the nature of the juror misconduct,” see People v. Clark, 597 N.Y.S.2d 646, 81 N.Y.2d 913, 613 N.E.2d 552 (1993), does not mean that Trial Courts can fashion non-individual inquiries because they do not want to isolate jurors. (See Respondent’s Brief, p. 27). In addition, the fact that ultimate decision of whether to discharge a juror is within the sound discretion of the Trial Court, see People v. Triplett, 758 N.Y.S.2d 493, 305 A.D.2d 230 (1st Dep’t 2003) and People v. Torres, 670 N.Y.S.2d 184, 248 A.D.2d 167 (1st Dep’t 1998), does not mean that the mandatory individual inquiry used to determine whether a juror should be discharged is discretionary. (See Respondent’s Brief, p. 28). The prosecution’s litany of cases where there was no evidence that a juror might be dischargeable have no bearing in the present case, because here, the Trial Court refused to conduct an individual inquiry because it did not want to isolate jurors, not because there was no evidence that the juror who authored the note might be dischargeable. (See Respondent’s Brief, pp. 35-36). Specifically, the Trial Court never said that the juror’s note was not some evidence that jurors prematurely deliberated, but instead, stated only that it could not “jump to the 6 conclusion” that jurors had actually prematurely deliberated. [A-221]. Regardless, it is clear that the primary reason the Trial Court refused to conduct the individual inquiry of the juror who authored the note is because it did not want to isolate jurors, see id., and none of the prosecution’s cases involve that rationale. See People v. Brown, 859 N.Y.S.2d 175, 52 A.D.3d 248 (1st Dep’t 2008)(Trial Court properly exercised its discretion in conducting group inquiry instead of individual inquiry where there was no evidence that juror discussed evidence with other jurors); People v. Cosby, 708 N.Y.S.2d 58, 271 A.D.2d 353 (1st Dep’t 2000)(Trial Court properly exercised its discretion in conducting group inquiry by show of hands instead of individual inquiry where jurors did nothing wrong but defendant engaged in violent courtroom disruptions); People v. Gonzalez, 648 N.Y.S.2d 78, 232 A.D.2d 204 (1st Dep’t 1996)(defendant failed to preserve claims that trial court’s inquiry was insufficient and speculative claim of jury taint unsupported by the record); People v. Matiash, 602 N.Y.S.2d 977, 197 A.D.2d 794 (3d Dep’t 1993)(Trial Court properly exercised its discretion in not conducting individual inquiry of two jurors after conducting individual inquiry of Commissioner of Jurors and witness and determining that conversation witness overheard between jurors and employees of fast food restaurant was innocuous). (See Respondent’s Brief, pp. 35-36). 7 Finally, the prosecution’s erroneous proposition that a discretionary standard controls, commits it to misreading two decisions on which Mr. Rodriguez relies, People v. Ordenana, 795 N.Y.S.2d 582, 20 A.D.3d 39 (1st Dep’t 2005) and People v. McClenton, 630 N.Y.S.2d 290, 213 A.D.2d 1 (1st Dep’t 1995). The prosecution contends that these cases “involved judges who were found to have abused their discretion by making no inquiry at all in response to a legitimate allegation of possible juror misconduct.” (Respondent’s Brief, p. 36). However, the Appellate Division in Ordenana and McClenton did not hold that the Trial Courts “abused their discretion” in refusing to conduct individual inquiries, but instead, held that the Trial Courts were required to conduct individual inquiries and because they did not, they erred. See People v. Ordenana, supra; People v. McClenton, supra. These cases are consistent with Mr. Rodriguez’s position that in cases of legitimate allegations of possible juror misconduct, like the present case, Trial Courts must conduct individual inquiries and therefore have no discretion to abuse. B. Even if the Trial Court did have the discretion to not conduct an individual inquiry, it should have conducted one here. The prosecution offers numerous theories as to what the juror’s note here could mean. Thus the juror’s use of the word “pretext” could mean “nothing more than an understanding that the People’s evidence alleged that pretext was the undergirding of the interactions between the coconspirators—in other words, that 8 juror eleven grasped the thrust of the People’s case and the basic framework of the proof that been presented.” (Respondent’s Brief, p. 28). The juror who wrote the note could have just been “making a reasonable and attentive request to hear additional testimony about how codefendant Lantigua met defendant Mejias,” because a “thoughtful juror, having listened to numerous witnesses and knowing that she would soon be called upon to resolve the case, might naturally contemplate a factual question of this kind that was not directly addressed by the trial evidence.” (Id. at 29). Even the Trial Court stated that the juror’s use of the word “we” could have just been an awkward way of expressing herself. [A-216]. But the point is not what the note could mean; the point is that both the prosecution and the defendants deserved to know what the note actually meant. The Trial Court refused to conduct an individual inquiry or even a probing inquiry to discern the note’s actual meaning, not because there was nothing to discern or the meaning was indiscernible, but because the Trial Court did not want to isolate jurors. [A- 221]. Because the interests of both the prosecution and the defendant in securing an impartial verdict outweigh a juror’s potential unease at being isolated through individual inquiry, the Trial Court erred in placing a juror’s potential unease first. In addition, the prosecution’s attempt to distinguish Ordenana and McClenton from the present case because there, no inquiry was made whereas here, an inquiry was allegedly made, must fail. (See Respondent’s Brief, p. 36). 9 Just because a Trial Court asks a question, does not mean that it conducted an “inquiry” within the meaning of Buford. Here, the Trial Court’s “inquiry” was diametrically opposed to Buford’s in camera, probing inquiry where a Trial Court carefully considers a juror’s answers and demeanor, because the Trial Court merely asked one question of all the jurors at the same time in open court that did not probe into the unique facts of the case and was to be answered by a mere show of hands. [A-222]. Thus here, as in Ordenana and McClenton, it can safely be said that because the Trial Court refused to conduct any inquiry within the meaning of Buford, it will never be known whether some of the jurors engaged in premature deliberations or commenced deliberations with a predisposition toward a guilty finding. C. The prosecution’s preservation argument is meritless. The prosecution contends that because defendants-appellants argued that the Trial Court should have conducted an individual inquiry of the author of a note that read, “We want to know how/when and under what pretext Junior met Miguel Mejias,” specifically on the basis that the note used the word “we,” defendants- appellants failed to preserve their argument that the Trial Court should have conducted an individual inquiry of the juror on the basis that the note used the word “pretext.” While this argument has a superficial appeal because the words “we” and “pretext” are different, it is meritless, because in response to the 10 defendants-appellants’ argument that the Trial Court should conduct an individual inquiry of the author of the note, the Trial Court expressly decided that “under what pretext” was not very well written. [A-216]. On appeal, Mr. Rodriguez contends that “under what pretext” was well written because, as the prosecution puts it, “pretext was the undergirding of the interactions” between the defendants. (See Respondent’s Brief, p. 28). Therefore, the argument is preserved. See CPL § 470.05(2)(protest is sufficient if in response to a protest by a party, the court expressly decided the question raised on appeal). In addition, because the Trial Court returned to the issue of whether an individual inquiry should be conducted of the juror who authored the note, by pointing out that juror number 11 authored the note but juror number 10 handed the note to the Court, and expressly decided that “it doesn’t really matter” [A- 225], the argument is preserved that it did matter because it showed at least two jurors involved with a note that begins with “We.” See CPL § 470.05(2)(protest is sufficient if in response to a protest by a party, the court expressly decided the question raised on appeal). 11 POINT II THE PROSECUTION’S THEORY THAT TESTIMONY ABOUT THE INTERNATIONAL DRUG TRADE OF HIGH- LEVEL NARCOTICS DEALERS AND A MAP OF SOUTH AMERICA SHOULD BE ADMITTED INTO EVIDENCE IN CASES INVOLVING LARGE QUANTITIES OF NARCOTICS REGARDLESS OF WHETHER DEFENDANTS HAD ANY CONNECTION WITH SUCH A NETWORK OR SOUTH AMERICA IS UNWORKABLE AND DANGEROUS. There is no evidence that the defendants were part of a world-wide drug network or had anything to do with South America. Instead, the only transaction alleged was the one to have occurred in this case. To be relevant, evidence must prove the existence of a material fact. Where there is no allegation that defendants were part of a high-level international drug narcotics conspiracy or had anything to do with South America, it is beyond cavil that proof of how high-level international drug narcotics conspiracies operate or how things are done in South America is immaterial. Therefore, the testimonial evidence about the international drug trade and the map of South America here were irrelevant and should not have been admitted into evidence. The prosecution’s contention to the contrary does not contain a workable limiting principle. Thus the prosecution argues that, generally, “background testimony about the nature and practice of international drug smuggling operations, along with corresponding law enforcement methods of investigation, is material and appropriate to aid a jury in understanding the evidence against defendants who 12 traffic in large quantities of narcotics.” (Respondent’s Brief, p. 47). It is unclear what “large quantities of narcotics” means. Furthermore, admitting background testimony based on quantity assumes that defendants actually were involved with such a quantity, whereas that cannot be assumed but must be proven and found by a jury. Otherwise, the prosecution could merely allege a “large quantity of narcotics” and based on that unproven allegation alone, make defendants appear to be part of a world-wide drug network when they are actually not. The potential for prejudice and the danger of securing convictions based on irrelevant evidence outweighs the limited value of teaching jurors about the high-level international drug trade, especially where, as here, defendants are not part of it. CONCLUSION For these reasons, defendant-appellant Antonio Rodriguez’s convictions for conspiracy and narcotics possession should be reversed, with what other relief this Court deems just and proper. Dated: New York, New York November 6, 2012 Respectfully submitted, ___________________ David Touger