The People, Respondent,v.Anthony Lewis, Appellant.

Brief

N.Y.February 12, 2014

To be argued by SUSAN H. SALOMON (20 Minutes) APL-2013-00076 Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ANTHONY LEWIS, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 74 Trinity Place New York, NY 10006 Phone: (212) 577-2523, Ext. 518 Fax: (212) 577-2535 ssalomon@cfal.org SUSAN H. SALOMON Of Counsel September 18, 2013 ii TABLE OF CONTENTS TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 POINT I THE COURT’S LISTING OF ALLEGED CRIME- LOCATIONS ON THE VERDICT-FORM VIOLATED C.P.L. § 310.20(2), IN THAT THEY DID NOT QUALIFY AS “COMPLAINANTS” UNDER THE STATUTE — ERROR THAT REQUIRES AUTOMATIC REVERSAL OF THE ENTIRE JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. A complainant in § 310.20(2) means an alleged victim.. . . . . . 3 B. The unauthorized annotations on the verdict-form compel automatic reversal of the entire judgment. . . . . . . . . . . . . . . . . 7 POINT II COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO MOVE TO SUPPRESS THE FRUITS OF THE WARRANTLESS GPS INSTALLATION UNDERNEATH APPELLANT’S CAR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 POINT III THE APPELLATE DIVISION FAILED TO PROPERLY CONDUCT WEIGHT-OF-EVIDENCE REVIEW OF APPELLANT’S CHALLENGES TO HIS LARCENY CONVICTIONS INVOLVING THE BANKS. . . . . . . . . . . . . . . . . . 14 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 iii TABLE OF AUTHORITIES Federal Cases Government of Virgin Islands v. Forte, 865 F.2d 59 (3d Cir. 1989)........... 11 State Cases People v. Alamo, 34 N.Y.2d 453 (1974)...................................................... 15 People v. Alejandro, 70 N.Y.2d 133 (1987). ................................................. 4 People v. Cole, 85 N.Y.2d 990 (1995). ...................................................... 8, 9 People v. Esquilin, 37 A.D.3d 197 (1 Dept. 2007).....................................st 15 People v. Jennings, 69 N.Y.2d 103 (1986). ................................................. 15 People v. Martell, 91 N.Y.2d 782 (1998)....................................................... 8 People v. Miller, 18 N.Y.3d 704 (2012). ................................................. 9, 10 People v. Moore, 71 N.Y.2d 684 (1988)........................................................ 8 People v. Nesbitt, 20 N.Y.3d 1080 (2013)............................................. 10, 11 People v. Sanchez, 84 N.Y.2d 440 (1994). ................................................ 6, 7 People v. Stultz, 2 N.Y.3d 277 (2004). ........................................................ 12 People v. Vasquez, 20 N.Y.3d 461 (2013)............................................. 12, 13 People v. Weaver, 12 N.Y.3d 433 (2009). ............................................. 10, 11 People v. Weaver, 52 A.D.3d 138 (3d Dept. 2008). .................................... 12 Smith v. People, 47 N.Y. 330 (1872). ............................................................ 6 iv State Statutes C.P.L. § 100.15(1). ......................................................................................... 4 C.P.L. § 215.20. .......................................................................................... 5, 6 C.P.L. § 310.20. .................................................................................... passim C.P.L. § 310.30. .............................................................................................. 8 C.P.L. § 330.30(1). ....................................................................................... 11 C.P.L. § 710.30. ............................................................................................ 12 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : ANTHONY LEWIS, : Defendant-Appellant. : ---------------------------------------------------------------------x PRELIMINARY STATEMENT Appellant submits this brief in reply to respondent’s [hereinafter RB], received by appellant on August 23, 2013. More particularly, appellant replies to respondent’s arguments that the store-location listings on the verdict-form did not violate C.P.L. § 310.20(2) and, even if they did, do not require reversal (Point I); that defense counsel did not provide ineffective assistance by failing to make a suppression motion based on the warrantless installation of the GPS device underneath appellant’s car (Point II); and that the Appellate Division properly evaluated and rejected appellant’s weight- of-evidence claims involving the larceny convictions premised on his stealing money from various banks (Point III). 2 REPLY ARGUMENT POINT I THE COURT’S LISTING OF ALLEGED CRIME- LOCATIONS ON THE VERDICT-FORM VIOLATED C.P.L. § 310.20(2), IN THAT THEY DID NOT QUALIFY AS “COMPLAINANTS” UNDER THE STATUTE — ERROR THAT REQUIRES AUTOMATIC REVERSAL OF THE ENTIRE JUDGMENT. Respondent concedes that, aside from Plaza Collectible, the banks were the “victims” in the larceny counts. Respondent acknowledges as well that the various account-holders were the identity-theft “victims.” As to the forged-instrument charges, respondent makes no claim that the stores were “victims,” agreeing that these charges involved no particular “victims.” See RB at 29, 31; Appellant’s Opening Brief [hereinafter AB] at 30-33. Respondent also does not deny that the “victims” might properly have been included on the verdict-form as “complainants” under the controlling statute, C.P.L. § 310.20(2). Rather, respondent argues that including them on the verdict-form “would not have assisted the jury at all” and would instead have caused confusion. RB at 30. On the other hand, insists respondent, the form’s “parentheticals which listed the stores at which those crimes had occurred” effected no error. By respondent’s lights, these stores also qualified as “complainants” — for all the charges at issue — under its Put to the side that the court’s listing of the stores demonstrably confused the1 jury, given its question about one of the larceny counts. See AB at 34 n.7. More, as respondent itself acknowledges, § 310.20(2) would allow2 distinguishing such counts by date. See RB at 31 n.11. 3 “flexible” reading of the statute. RB at 24, 29, 31. Appellant need not prove whether listing the actual “victims” would have assisted the jury, for § 310.20(2) does not require a court to submit an annotated verdict-form at all. Nor, for this reason, need appellant — or this1 Court — entertain respondent’s argument that the lack of particular victims for the forged-instrument counts itself authorized or excused listing the store-locations for these counts. See RB at 31. Appellant simply, and2 dispositively, maintains that the store-location listings exceeded the annotations that § 310.20(2) permits, in that the stores did not qualify as “complainants” — a term, respondent’s contrary claims notwithstanding, synonymous with “alleged victims.” These erroneous listings demand per se reversal of the entire judgment. A. A complainant in § 310.20(2) means an alleged victim. Respondent recognizes that § 310.20(2) permits distinguishing similar counts by listing, insofar as relevant here, “names of complainants.” According to respondent, a complainant includes not only “victims” but anyone with knowledge of the defendant’s criminal conduct. Since the 4 stores supplied witnesses to and other evidence bearing on the alleged crimes, respondent concludes, they constituted complainants under the statute. See RB at 27. Respondent’s syllogism proceeds from a faulty understanding of the statute’s meaning of “complainant[].” Noting that § 310.20(2) itself does not define “complainant,” respondent invokes C.P.L. § 100.15(1)’s definition: A “‘complainant’ . . . [may be] any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged.” As this statute’s use of internal quotation-marks signifies, however, this definition is tailored to the particular nature of the statute. Contained within Article 100, governing “Commencement of Action in Local Criminal Court,” § 100.15(1), as its title elucidates, addresses the “form and content” of informations, misdemeanor complaints, and felony complaints. Considering that § 310.20, by contrast, addresses “Prosecutions in Superior Courts,” and that trial by indictment does not allow proof by (“information and belief”) hearsay allegations, § 100.15(1)’s pretrial, special-purpose definition of complainant does not aid respondent’s cause. See People v. Alejandro, 70 N.Y.2d 133, 137-38 (1987) (observing that, following a felony complaint, People must then present “actual evidence 5 demonstrating a prima facie case” in seeking an indictment). Not only does respondent’s effort to expand § 310.20(2)’s meaning of complainant fail, its challenge to appellant’s definition — that complainant is co-extensive with “alleged victim” — falters as well. Here, respondent points to C.P.L. § 215.20’s definition of a “victim” as referring to the defendant’s “alleged” conduct, and to §§ 60.42 and 60.43, which set out rules of evidence regarding “victims.” See RB at 28, 33. As respondent sees it, the use and circumscribed definitions of the term “victim” in these statutes signifies that it means something “different from and more narrow than complainant.” RB at 28 n.9, 30-31, 33. Again, however, the nature of the statutes undercuts respondent’s argument. Section 215.20 explicitly states that its definition of “victim” is “[f]or purposes of section 215.10 of this article” — which addresses prosecutions adjourned for dispute resolution, not those destined for juries. And §§ 60.42 and 60.43 establish rules for courts and lawyers — which do not go into the jury-room. Speaking, as they do, to non-jurors, these statutes may employ the word “victim” — instead of “complainant” — without risk of prejudice to the defendant. They may concern victims who have suffered particular harms — those who have sustained physical or financial injury in 6 the case of § 215.20; victims of sexual offenses in the case of § 60.42 — but they do not purport to cover the field or describe the universe of “victims.” And, in all events, nothing in these statutes remotely suggests that these victims could not also be described as “complainants.” Appellant’s understanding of “complainant” in § 310.20(2) — as synonymous with “alleged victim” but more neutral, and thus appropriate for a jury, and, thereby, for a verdict-form — thus conforms to the basic principle that statutory construction turns on an understanding of words in their context. See Smith v. People, 47 N.Y. 330, 337 (1872). This Court’s own interchangeable use of the terms “complainant” and “victim” conclusively affirms that understanding. Specifically, in People v. Sanchez, 84 N.Y.2d 440 (1994), this Court dismissed several convictions — including three for grand larceny — for the prosecution’s failure to adequately and timely identify, either by indictment or bill of particulars, the “name[s] [of] the complainants” and to connect them to the specific counts of the indictment. Although the prosecutor had supplied a “witness list” to the defense, “[a]t no time, however, did the prosecution link the names or numbers of victims to the counts of the indictment. In fact it was not until all of the complaining witnesses had testified and been cross-examined that It thus bears mention as well that respondent has no answer to appellant’s3 argument that, given § 310.20(2)’s purpose of allowing the jury to distinguish among similar-in-law “counts,” “complainants” must necessarily be tethered to the indictment — which does not name witnesses. See AB at 27. 7 the prosecutor was willing to commit the People as to which complainant corresponded to which count of grand larceny.” Id. at 444-46 (emphasis added). That this Court referred to a violation of the defendant’s State constitutional right to indictment as a source of prejudice bears mention. Despite “no per se rule that requires an indictment to name the victim for each count alleged,” the Court noted, “the indictment and bill of particulars must provide sufficient alternative information identifying the charged crime to satisfy statutory and constitutional requirements.” Id. at 446 (internal citations omitted; emphasis added). This observation reinforces that complainants / alleged victims are rooted in the counts of the indictment. 3 B. The unauthorized annotations on the verdict-form compel automatic reversal of the entire judgment. “[E]ven assuming that the trial court deviated from the language of [C.P.L.] 310.20,” respondent argues, “that deviation was not error, or if error, it did not affect the jury’s verdict and thus does not entitle [appellant] to relief.” RB at 40. This Court’s jurisprudence on which respondent relies 8 does not support these claims. Nothing does. In People v. Martell, 91 N.Y.2d 782, 784 (1998), this Court found no error in submitting to a deliberating jury a list of exhibits correlated to numerous counts of the indictment. As the Court repeatedly emphasized, the trial court’s submission effected no error because the jury had specifically requested the material, and C.P.L. § 310.30 mandated that the court address the request. See id. at 786. This Court had previously reached a similar result in People v. Moore, 71 N.Y.2d 684 (1988), where it had approved the trial court’s distributing the text of two counts of the indictment to the deliberating jury. Here, too, this Court emphasized that no error occurred because the jury had asked for the material. See id. at 687- 88. Since neither Martell nor Moore involved verdict-forms, this Court’s consideration of the substance of the material delivered to the juries in these cases bears no resemblance and no relevance to appellant’s case. In any event, neither case helps respondent because the court in appellant’s case submitted the defective form sua sponte. While People v. Cole, 85 N.Y.2d 990 (1995), rebuffed the defendant’s challenge to a verdict-form — which directed the order in 9 which the submitted charges should be considered — this Court found that the direction had merely implemented § 310.20(2), which authorizes trial courts to include not only the offenses, but “the possible verdicts thereon.” See id. at 992. Nothing in § 310.20(2) authorized the store-location listings. Appellant does not dispute that this Court has left the holdings of Martell, Moore, and Cole “intact.” RB at 40. But they do not salvage the verdict-form errors in appellant’s case. That leaves People v. Miller, 18 N.Y.3d 704 (2012). Respondent acknowledges that, finding the verdict-form annotation there not authorized by C.P.L. § 310.20(2), this Court dispensed with harmless-error analysis in reversing. Nor does respondent contest that this Court automatically reversed the full judgment — not simply the conviction that was the subject of the improper annotation. Still, respondent would label its automatic- reversal rule “inapt” in appellant’s case. RB at 39. Apparently, respondent would read Miller as confining its holding to only certain types of unauthorized annotations — those involving statutory language — and would exempt the improper annotations in appellant’s case. See RB at 25, 38-40. 10 Contrary to respondent’s wishful reading, Miller imposed no such limitations. It declared: “Nothing of substance can be included that the statute does not authorize.” 18 N.Y.3d at 706. And “harmless error analysis cannot be applied where a verdict sheet exceeds the limitations that section 310.20(2) imposes.” Id. at 708. These declarations warrant reversal of the entire judgment here. POINT II COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO MOVE TO SUPPRESS THE FRUITS OF THE WARRANTLESS GPS INSTALLATION UNDERNEATH APPELLANT’S CAR. Though its language seeks to hedge the point, respondent evidently accepts that the warrantless attachment of the GPS device underneath appellant’s car violated People v. Weaver, 12 N.Y.3d 433 (2009). See RB at 51-54. Still, respondent would defend counsel’s failure to make a suppression motion based on the warrantless installation. Respondent’s various defenses of counsel’s inaction fail. Primarily, respondent contends that the law did not oblige counsel to anticipate a change in the law — i.e., this Court’s decision in Weaver. See RB at 49-50, 53-54. People v. Nesbitt, 20 N.Y.3d 1080 (2013) — discussed in appellant’s brief, see AB at 52, but wholly absent from respondent’s — 11 eviscerates this defense. There, this Court concluded that counsel had been ineffective for “overlooking” “an open issue.” 20 N.Y.3d at 1082. What could have been more “open” — and inviting of defense counsel’s use — than the GPS issue then pending before this Court? More, that counsel’s own client had explicitly and repeatedly voiced the issue in court rendered counsel’s inaction even more inexcusable. Respondent’s silence on this additional point — including its failure to acknowledge Government of Virgin Islands v. Forte, 865 F.2d 59, 62-63 (3d Cir. 1989), discussed in AB at 52 — is telling. Nesbitt and Forte thus foreclose respondent’s essentially similar claim that competent counsel “might” have thought that this Court’s decision in Weaver “might” not benefit his client. See RB at 51-52. Commonsense defeats it as well. Counsel’s bringing of the motion would have entailed no downside. Respondent does not deny that, had counsel moved to suppress, this Court’s decision in Weaver would have applied both to his C.P.L. § 330.30(1) motion and on a direct appeal. See AB at 50 & n.15 (arguing decision’s retroactivity). Still, respondent would defend counsel because the trial court would have denied the suppression motion under then-extant 12 law, i.e., People v. Weaver, 52 A.D.3d 138, 141-43 (3d Dept. 2008). See RB at 50-51. In support, respondent cites People v. Stultz, 2 N.Y.3d 277 (2004), where this Court found that “appellate counsel had no basis to castigate trial counsel for failing to make a losing argument,” id. at 287. See RB at 51. The losing argument there — concerning an evidentiary matter — was controlled by this Court’s well-settled and stable precedent. See 2 N.Y.3d at 286. Here, the law at issue was potentially in significant flux, to the defendant’s benefit. Last, in response to appellant’s proffer of what a suppression hearing might disclose by way of fruits (see AB at 44-47), respondent offers a counter-narrative. See RB 54-58. Based on bits of trial testimony and police (“investigation”) reports, these dueling submissions do not excuse counsel’s deficiency. They demonstrate the need for a suppression hearing. Respondent thus misplaces reliance on People v. Vasquez, 20 N.Y.3d 461, 467 (2013), where this Court, finding it “not obvious” that counsel could have succeeded, declined to hold him ineffective for failing to seek preclusion of the victim’s post-arrest identification for lack of timely notice under C.P.L. § 710.30. See RB at 54. As this Court’s discussion of it detailed, the trial record supplied strong evidence of “good cause” to have 13 allowed for belated notice under the statute. See id. at 466-67. This Court went on to find that, given the other trial evidence — which included additional, unassailable, identification evidence and a virtual admission of guilt by the defendant from his grand-jury testimony — it was “hard to believe” that preclusion would have made any difference in the jury’s assessment of the defendant’s guilt. Id. at 467-68. Here, however, it is “obvious” that the warrantless installation of the GPS violated this Court’s decision in Weaver. And, while the uncontested evidence at issue may have made no difference in Vasquez, given that case’s simple and overwhelming evidence of guilt, the same cannot be said of the uncontested GPS-derived evidence in appellant’s case. Instead, respondent labors hard in disputing appellant on what fruits could be revealed at a hearing — at least regarding the events of March 5 , whichth accounted for half of the counts submitted to the jury. See AB at 44; RB at 56-58. But perhaps the trial prosecutor’s summation put it best: “Now, if we didn’t have the GPS on, we would not have known he was at Best Buy. . . . Investigator Novellino would not have been able to go inside and make the observations . . . . [Novellino] did it with Plaza. He did it with Best Buy, with Staples.” “It [was] necessary to take certain steps to be able to get the 14 evidence that we can bring to court to get the verdict that he deserves” (A. 837). POINT III THE APPELLATE DIVISION FAILED TO PROPERLY CONDUCT WEIGHT-OF-EVIDENCE REVIEW OF APPELLANT’S CHALLENGES TO HIS LARCENY CONVICTIONS INVOLVING THE BANKS. According to respondent, appellant’s “attack on the [four] bank- related larceny charges rests on his efforts to ignore the court’s charge.” RB at 63. To the contrary. Appellant maintains that these convictions may not be sustained precisely because of the charge as given — which the Appellate Division’s weight-of-evidence review erroneously failed to recognize. Respondent does not dispute that the court told the jury that “some of the terms used in this definition of steals property have their own special legal meanings.” Respondent also acknowledges that, under this “special” definitions section, the court narrowed the “special legal meaning” of “takes, obtains or withholds” to one word. That word was “takes,” which, the court elaborated, required doing so “without an owner’s consent and [by] exercis[ing] dominion and control over [the] property for a period of time however temporary in a manner wholly inconsistent with the owner’s 15 rights.” See RB at 65. Measured by this charge, the People failed to prove appellant’s guilt. The People presented no evidence that appellant or his alleged accomplices “took” the banks’ money. That respondent does not contend otherwise does not surprise, for this Court’s “taking” jurisprudence embraces “dominion and control,” and establishes that the thief must exercise some physical control or command of the property. See, e.g., People v. Jennings, 69 N.Y.2d 103, 118 (1986); People v. Alamo, 34 N.Y.2d 453, 458 (1974). No physical access to or physical mastery over the banks’ monies occurred here. Cf., e.g., Jennings, 69 N.Y.2d at 116-19 (having “pick[ed] up” bank’s “‘bulk deposits’” pursuant to an agreement, defendants “took” bank’s money by using it to make short-term investments even after bank had directed them to stop); People v. Esquilin, 37 A.D.3d 197, 197-98 (1 Dept. 2007) (defendant took money from bank by makingst “empty-envelope” deposits at ATMs that were immediately credited to his account, followed by withdrawals before the bank could inspect the envelopes and adjust his account balances). Considering that the trial court never retracted or amended its “special legal meanings” anywhere in the charge in appellant’s case— nor does respondent suggest otherwise — that 16 should settle the matter. But even assuming — contrary to the court’s charge — that the jury attached meaning to “obtains” or “withholds” beyond “takes,” that would avail respondent nothing. P.L. § 155.00(2)’s special definition of “obtain” broadens its natural meaning to include “the bringing about of a transfer . . . of property . . . whether to the obtainer or another” (emphasis added). That broadened, counterintuitive, definition might have allowed a jury-finding, based on Gabrielle Nohelty’s testimony, that the user of a swiped counterfeit credit-card has unlawfully “obtain[ed]” the issuing bank’s money by causing it to transfer money to the merchant. By its silence, however, respondent tacitly admits that the court nowhere even hinted at this unique definition of “obtain” to appellant’s jury. Last, grasping at “withholds,” respondent would posit appellant’s guilt on a failure to pay credit-card bills. While respondent may call this withholding, and ascribe such an understanding to “all users of credit cards,” RB at 63, the prosecution presented no proof on the matter. 17 CONCLUSION FOR THE REASONS STATED IN APPELLANT’S OPENING BRIEF AND THOSE HEREIN, THE RELIEF REQUESTED SHOULD BE GRANTED. Dated: New York, New York September 18, 2013 Respectfully submitted, Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 74 Trinity Place New York, NY 10006 (212) 577-2523 By ____________________ Susan H. Salomon Of Counsel