The People, Respondent,v.Anthony Lewis, Appellant.BriefN.Y.February 12, 2014To be argued by SUSAN H. SALOMON (20 Minutes) APL-2013-00076 3;tate of J}etu !Jork THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- ANTHONY LEWIS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT SUSAN H. SALOMON Of Counsel May 15,2013 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 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................... v PRELIMINARY STATEMENT .................................. 1 JURISDICTIONAL STATEMENT ............................... 2 QUESTIONS PRESENTED ..................................... 4 SUMMARY OF ARGUMENT ................................... 5 STATUTE INVOLVED ....................................... 12 STATEMENTOFFACTS ..................................... 12 ARGUMENT ................................................ 21 POINT I THE COURT VIOLATED C.P.L. § 310.20(2) AND THEREBY COMMITTED REVERSIBLE ERROR BY SUBMITTING A VERDICT-FORM THAT, FOR THE OVERWHELMING MAJORITY OF COUNTS, LISTED ALLEGED CRIME LOCATIONS, NOT COMPLAINANTS. . ............................... 21 A. The court gave the jury an annotated verdict-form, which, as to the vast majority of counts and over appellant's objection, listed the location of the alleged crime. . ............................... 21 B. Deeming the stores "proxy" complainants, the Appellate Division rejected appellant's argument that the verdict-sheet "crime-location" annotations violated the governing statute. . .................. 24 C. Neither the Appellate Division's complainant- proxy theory nor any other rationale justified the verdict-form annotations - which compel POINT II reversal. .................................... 25 1. The governing statute does not include, and thus does not permit, the listing of "proxy" complainants. . .......................... 26 2. The 15 notations at issue did not denote complainants ............................ 30 3. The wrongful annotations compel reversal of the judgment .......................... 33 COURT-RULING AND COUNSEL'S INACTION WRONGL Y DENIED APPELLANT THE OPPORTUNITY TO CHALLENGE THE PROSECUTION'S WARRANTLESS INSTALLATION OF A GPS TRACKING-DEVICE ON HIS CAR, CONDUCT THAT VIOLATED PEOPLE V. WEAVER, 12 N.Y.3D 433 (2009) - PENDING PRIOR TO AND DURING HIS TRIAL - AND CONDUCT ABOUT WHICH APPELLANT HIMSELF PRESSED COUNSEL (AND THE COURT) PRIOR TO TRIAL. . .... 36 A. The record established that law enforcement had installed, surreptitiously and without judicial approval, a GPS device underneath appellant's car. Counsel moved, only after appellant's conviction, to set aside the verdict on account of the fruits of the GPS tracking, invoking People v. Weaver, 12 N.Y.3d 433 (2009), which, after appellant's conviction but before his sentencing, ruled such warrantless installations unconstitutional. The court summarily denied the motion. . ............. 37 11 B. Appellant was wrongly denied the opportunity to challenge and suppress the fruits of the warrantless GPS POINT III installation on his car. . ........................ 42 1. The GPS installation and use in this case violated this Court's decision in Weaver. ..... 43 2. The GPS tracking played a significant role in the investigation and trial. ............... 44 3. The particular circumstances of this case warrant the finding that counsel rendered ineffective assistance ...................... 47 THE APPELLATE DIVISION FAILED TO PROPERLY CONDUCT WEIGHT-OF-EVIDENCE REVIEW OF APPELLANT'S CHALLENGES TO HIS LARCENY CONVICTIONS .......................... 55 A. Under mutually reinforcing weight-of-evidence review and law-of-the-case doctrine, either the defendant's or the prosecution's failure to object to the charge may be dispositive - depending on the nature of the error. ......................... 57 B. The court's unobjected-to charge required the prosecution to prove that appellant wrongfully "took" money from the banks - which the prosecution failed to do. . ...................... 60 C. The court's unobjected-to charge required the prosecution to prove that appellant took the watch from the merchant without the store's consent - which the prosecution failed to do, as the charge included no theories of larceny by false promise or false pretense. . .............................. 64 111 POINT IV BY PEREMPTORILY REJECTING APPELLANT'S REQUESTS FOR A VOICE-IDENTIFICATION EXPERT TO CHALLENGE THE PROSECUTION'S CASE THAT HIS VOICE WAS ON THE WIRETAPPED CALLS, THE COURT ABUSED ITS DISCRETION. . ................................... 67 POINT V APPELLANT'S SENTENCE VIOLATED HIS DUE- PROCESS, JURY-TRIAL, AND PROPORTIONATE- PUNISHMENT RIGHTS, AND OTHERWISE CONSTITUTED AN ABUSE OF DISCRETION AS A MATTER OF LAW ................................ 73 A. After vacating its original determination that appellant was a predicate felon, the court, over the defense's constitutionally grounded objections, imposed an aggregate first-felony-offender sentence that, by its operation, reduced appellant's original punishment by only eight months. . ........ 74 B. Appellant's amended sentence violated his due- process, jury-trial, and proportionate-punishment rights; at minimum, it constituted an abuse of the court's discretion as a matter of law. . ............. 78 CONCLUSION .............................................. 84 IV TABLE OF AUTHORITIES FEDERAL CASES Ake v. Oklahoma, 470 U.S. 68 (1985) ............................ 68 Government of Virgin Islands v. Forte, 865 F.2d 59 (3d Cir. 1989) ..... 52 Griffith v. Kentucky, 479 U.S. 314 (1987) ......................... 50 Strickland v. Washington, 466 U.S. 668 (1984) ..................... 47 United States v. Jones, 565 U.S. _, 132 S. Ct. 945 (2012) ............. 44 United States v. Quinieri, 306 F.3d 1217 (2d Cir. 2002) .............. 79 Washington v. Texas, 388 U.S. 14 (1967) ......................... 68 STATE CASES Matter of Alonzo M. v. New York City Department of Probation, 72 N.Y.2d 662 (1988) ........................................ 26 Mountain View Coach v. Storms, 102 A.D.2d 663 (2d Dept. 1984) ..... 50 People v. Baghai-Kermani, 84 N.Y.2d 525 (1994)] .................. 34 People v. Bailey, 13 N.Y.3d 67 (2009) ............................ 31 People v. Baker, 14 N.Y.3d 266 (2010) ........................... 48 People v. Baldi, 54 N.Y.2d 137 (1981) ............................ 47 People v. Benevento, 91 N.Y.2d 708 (1998) ....................... 47 People v. Brisson, 68 A.D.3d 1544 (3d Dept. 2009) ............. 50, 52 v People v. Carter, 63 N.Y.2d 530 (1984) ............................ 3 People v. Chavis, 91 N.Y.2d 500 (1998) .......................... 61 People v. Cronin, 60 N.Y.2d 430 (1983) ....................... 4, 70 People v. Damiano, 87 N.Y.2d 477 (1996) .......................... 3 People v. Dekle, 56 N.Y.2d 835 (1982) ........................... 58 People v. Dlugash, 41 N.Y.2d 725 (1977) ..................... 58,66 People v. Dromgoole, 234 A.D.2d 888 (4th Dept. 1996) .............. 69 People v. Esquilin, , 37 A.D.3d 197 (1st Dept. 2007) ............ 60,61 People v. Ford, 11 N.Y.3d 875 (2008) ............................ 62 People v. Hatterson, 63 A.D.2d 736 (2d Dept. 1978) ................ 68 People v. Jean-Baptiste, 11 N.Y.3d 539 (2008) ..................... 50 People v. Jeter, 80 N.Y.2d 818 (1992) ........................ 69,70 People v. Johnson, 10 N.Y.3d 875 (2008) ......................... 57 People v. Jones, 39 N.Y.2d 694 (1976) ............................ 81 People v. Kelly, 76 N.Y.2d 1013 (1990) ........................... 35 People v. King, 85 N.Y.2d 609 (1995) ............................ 66 People v. Kneitel, 33 A.D.3d 816 (2d Dept. 2006) ................... 49 People v. LaSalle, 95 N.Y.2d 827 (2000) .......................... 83 People v. Laing, 79 N.Y.2d 166 (1992) ........................... 26 VI People v. Lawrence, 64 N.Y.2d 200 (1984) ........................ 53 People v. Lewis, 102 A.D.3d 505 (1st Dept. 2013) ................... 1 People v. Malagon, 50 N.Y.2d 954 (1980) ......................... 58 People v. Martello, 93 N.Y.2d 645 (1999) ......................... 50 People v. Martinez, 81 N.Y.2d 810 (1993) ......................... 35 People v. Martinez, 83 N.Y.2d 26 (1993) .......................... 28 People v. Maryea, 157 A.D.2d 605 (1st Dept. 1990) ................. 82 People v. McGee, _ N.Y.3d _,2013 WL 1149163 (2013) ............. 48 People v. Mezon, 80 N.Y.2d 155 (1992) .......................... 53 People v. Miller, 2011 WL 8183153, at 23-26 ...................... 34 People v. Miller, 18 N.Y.3d 704 (2012) ....................... 25,30 People v. Naranjo, 89 N.Y.2d 1047 (1997) ................... 4,78,83 People v. Nesbitt, _ N.Y.3d _,2013 WL 1195696 (2013) ............. 51 People v. Noble, 86 N.Y.2d 814 (1995) .................... 10,56,58 People v. Owusu, 93 N.Y.2d 398 (1999) .......................... 26 People v. Pasley, 9 N.Y.3d 342 (2007) . . . . . . . . . . . . . . . . . . . . .. 3, 56, 57 People v. Pena, 50 N.Y.2d 400 (1980) ............................ 80 People v. Ponnapula, 229 A.D.2d 257 (1st Dept. 1997) ............... 65 People v. Roberts, 72 N.Y.2d 489 (1988) .......................... 28 Vll People v. Rodriguez, 17 N.Y.3d 486 (2011) ........................ 31 People v. Rodriguez, 95 N.Y.2d 497 (2000) ......................... 2 People v. Rodwin, 283 A.D.2d 242 (1st Dept. 2001) ................. 82 People v. Sala, 258 A.D.2d 182 (3d Dept. 1999) .................... 65 People v. Sanchez, 76 A.D.3d 122 (1st Dept. 2010) ................. 52 People v. Schonfeld, 68 A.D.3d 449 (1st Dept. 2009) ................ 82 People v. Slobodan, 67 A.D.2d 630 (1st Dept. 1979) . . . . . . . . . . . .. 81, 82 People v. Spann, 56 N.Y.2d 469 (1982) ........................... 29 People v. Stuart, 51 A.D.3d 547 (1 st Dept. 2008) ................... 66 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . .. 3,48 People v. Tyson, 209 A.D.2d 354 (1st Dept. 1994) ........ 69, 70, 71, 72 People v. Watson, 284 A.D.2d 212 (1st Dept. 2001) ................. 65 People v. Weaver, 12 N.Y.3d 433 (2009) ...................... passim People v. Williams, 46 A.D.2d 783 (2d Dept. 1974) ................. 81 People v. Williams, 160 A.D.2d 754 (2d Dept. 1990) ................ 71 FEDERAL STATUTES U.S. Const., amends. VIII, XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 80, 83 Vlll STATE STATUTES N.Y. Const., art. I, §§ 2, 6 .................................. 28, 80 N.Y. Const., art. I, § 5 ......................................... 83 C.P.L. § 310.20(2) ........................................ passim C.P.L. § 330.30(1) ........................................ passim C.P.L. §§ 380.50(2) ........................................... 28 C.P.L. § 450.90(1) ............................................. 2 P.L. § 155.00(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10,60,62 IX COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------------)( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANTHONY LEWIS, Defendant-Appellant. ----------------------------------------------------------------------)( PRELIMINARY STATEMENT By permission ofHon. Victoria A. Graffeo, granted March 28,2013 (A.1),! appellant appeals from a January 17,2013, order of the Appellate Division, First Department (A.2), People v. Lewis, 102 A.D.3d 505 (1 st Dept. 2013), which affirmed a judgment of the Supreme Court, New York County, rendered July 30,2009, as amended May 10,2011, convicting appellant, after a jury trial, of two counts of third-degree grand larceny, three counts of fourth-degree grand larceny, eight counts of second-degree criminal possession of a forged instrument, five counts of first-degree identity theft, one count of first-degree scheme to defraud, and one count of I Numbers preceded by "A" refer to pages in appellant's Appendix. 1 possession of forgery devices, and sentencing him to a prison term aggregating to 9 113 to 28 years (Wiley, J., at trial and sentencing). On April 25, 2013, this Court granted appellant's motion to assign Robert S. Dean, Center for Appellate Litigation, as counsel on this appeal. Appellant is currently incarcerated pursuant to the judgment, and no stay has been sought. Indicted with appellant, Jeffrey Barden pleaded guilty to third-degree grand larceny and was sentenced to a prison term of 2 to 4 years. He filed a notice of appeal on January 26,2009, but no appeal has been perfected. Also indicted with appellant, Kimberly Smith pled guilty to fourth-degree grand larceny and received a conditional discharge. She does not appear to have filed a notice of appeal. JURISDICTIONAL STATEMENT This Court has jurisdiction to entertain this appeal and to review the questions involved. See C.P.L. § 450.90(1). More particularly, Point I argues that the trial court's verdict-sheet listed alleged crime-locations, not complainants, in violation of C.P.L. § 310.20(2). Appellant personally, through counsel, protested the listing of the locations (A. 782-83).2 And the 2 In not only this instance but in others throughout the proceedings (see, ~, A. 541-43, 791-94), the court permitted a form of hybrid representation. See People v. Rodriguez, 95 N.Y.2d 497,500,502 (2000) (court possesses discretion to permit or disallow hybrid representation). 2 propriety of the form presents an issue subject to this Court's review. See, ~,People v. Damiano, 87 N.Y.2d 477,480 (1996). Point II argues that the court wrongly denied counsel's C.P.L. § 330.30(1) post-verdict motion that sought relief regarding the evidence derived from the warrantless GPS-installation on appellant's car - a claim based on People v. Weaver, 12 N.Y.3d 433 (2009), decided shortly after the verdict. This Court reviews the propriety and scope of § 330.30(1) motions. See,~, People v. Carter, 63 N.Y.2d 530,536-38 (1984). The Point argues, in the alternative, that counsel rendered ineffective assistance in failing to move to suppress regarding the installation. This, too, presents a jurisdictionally cognizable claim. See,~, People v. Turner, 5 N.Y.3d 476 (2005). Point III contends that the Appellate Division employed an inappropriate and prejudicial standard in its weight-of-evidence review regarding appellant's five grand-larceny convictions. This Court reviews such contentions. See,~, People v. Pasley, 9 N.Y.3d 342, 349-50 (2007). Point IV asserts that the trial court wrongfully rebuffed appellant's personal and repeated requests for the appointment of a voice expert, to challenge the prosecution's contention that the voice on the wiretapped calls 3 in evidence was his. Appellant's requests preserved the issue. See A. 44, 53,58,130-31,749,791). The gravamen of the court's denial, its peremptory conclusion that the issue was "not for an expert to determine," A. 53, constitutes a refusal to exercise discretion, conduct within this Court's jurisdictional purview. See,~, People v. Cronin, 60 N.Y.2d 430, 432 (1983). Last, Point V contends that federal and state constitutional error infected appellant's sentence. Counsel preserved these claims, arguing that appellant's punishment violated due process and burdened his jury-trial rights. See A. 1112-13. This Court reviews sentences for such abuses. See, ~,People v. Naranjo, 89 N.Y.2d 1047, 1049 (1997). QUESTIONS PRESENTED 1. Whether the court violated C.P.L. § 310.20(2) and thereby committed reversible error by submitting a verdict-form that, for the overwhelming majority of counts, listed alleged crime locations, not complainants. 2. Whether court-ruling and counsel's inaction wrongly denied appellant the opportunity to challenge the prosecution's warrantless installation of a GPS tracking- device on his car, conduct that violated People v. Weaver, 12 N.Y.3d 433 (2009) - pending prior to and during his trial - and conduct about which appellant himself pressed counsel (and the court) prior to trial. 4 3. Whether the Appellate Division failed to properly conduct weight-of-evidence review of appellant's challenges to his larceny convictions. 4. Whether, by peremptorily rejecting appellant's requests for a voice-identification expert to challenge the prosecution's case that his voice was on the wiretapped calls, the court abused its discretion. 5. Whether appellant's sentence violated his due-process, jury-trial, and proportionate-punishment rights, and otherwise constituted an abuse of discretion as a matter of law. SUMMARY OF ARGUMENT From January through April 2007, during their monitoring of court- authorized wiretaps, investigators working with the New York County District Attorney's office overheard numerous conversations that they determined manifested an ongoing operation involving the making and use of counterfeit credit-cards. In early March, these investigators, acting without a warrant, surreptitiously placed a GPS device underneath the car driven by appellant, a man they claimed to have overheard on the calls. Thereafter, over a number of days, they followed him and his passengers - his cousin, Jeffrey Barden, and a woman or two - as they drove to and then entered various stores in Manhattan, where, according to store personnel, 5 merchandise was purchased with what turned out to be credit-cards bearing information stolen from customers of assorted issuing banks. Several of the investigators, as well as some of the merchants, maintained that appellant or his companions had made the purchases. Based on these alleged events, an indictment jointly charged appellant, Barden, and "Jane Doe AKA Kimberly Smith" with multiple counts of grand larceny, criminal possession of stolen property, criminal possession of a forged instrument, criminal possession of forgery devices, identity theft, and scheme to defraud. After standing trial alone, appellant was convicted of virtually all the charges ultimately submitted and was sentenced to an aggregate prison term of9 1/3 to 28 years. This appeal challenges the fundamental fairness of his trial - from start to finish - and challenges its review by the Appellate Division as well. To begin: Law enforcement's installation of the GPS device on appellant's car assumed critical importance at trial. Also looming was this Court's pending decision in People v. Weaver, 12 N.Y.3d 433 (2009)- decided after appellant's conviction but before his sentencing - which declared such warrantless installations unconstitutional, absent exigent circumstances. Yet counsel, though having been given discovery 6 documents revealing the installation, having heard his client personally voice interest in the issue prior to trial, and having heard the trial testimony about it, made no motion to suppress its fruits - either before or during trial. Counsel did, however, move at sentencing to set aside the verdict on account of the GPS-derived evidence. Here, appellant argues that the court erred in summarily denying counsel's post-verdict motion. In the alternative, appellant contends that counsel rendered ineffective assistance by not having moved for suppression before or during trial. Countering the Appellate Division's bases for affirmance, he thus establishes that he indeed suffered a Weaver violation; that the apparent GPS-derived evidence in his case was hardly de minimus and thus prejudiced him; and that, on these particular facts, counsel could be faulted for not having acted on the anticipated decision. Point II presents the argument, with the relevant facts set out immediately preceding it. Evidence showed that, notwithstanding the investigators' assertions that appellant's voice was on the monitored calls, they had heard him speak in person on only a very few and limited occasions; their identifications of his voice were otherwise based on circumstantial evidence, such as his 7 allegedly appearing in places discussed earlier in calls. Appellant himself wished to challenge the prosecution's claim that it was his voice on the monitored calls. To that end, he repeatedly asked the court to appoint the defense a voice-identification expert. But appellant did so futilely, for the court deemed the matter not one for an expert. With the relevant facts incorporated in it, Point IV argues that the court's denial constituted an abuse of discretion that subverted appellant's constitutional rights to present a defense. Its ruling -. which the Appellate Division merely affirmed summarily - worked in prejudicial tandem with the lack of challenge to the GPS. The court's verdict-form, which appellant also protested, violated the controlling statute, C.P.L. § 310.20(2), in that, for the vast majority of counts, it listed alleged crime-locations (stores), not complainants, in differentiating among similar counts. The Appellate Division's approval of the form, on the theory that the stores constituted "proxy" complainants, finds no support in the statute or case-law. More, even though this Court's recent precedent makes clear that harmless-error analysis does not apply to verdict-form errors, a jury query during deliberations indicated that at least one such "proxy" notation caused jury confusion. The question revealed 8 that the jury thought, erroneously, that the listed store - rather than the particular bank, as charged in the indictment and in the court's oral instructions - had been the victim of the grand-larceny count at issue. Point I, which includes the relevant facts, argues that the defective form requires reversal. Whether or not the product of the defective form, the five grand- larceny convictions were, appellant argued in the Appellate Division, against the weight of the evidence. As Point III sets out, four of these charges accused appellant of stealing money from various banks that had issued the credit-cards whose information was used to create the counterfeit cards that were then used at various stores. Bank officials had explained that, if a merchant swiped and received approval for a counterfeit card in connection with a purchase, the issuer-bank bore the loss - i.e., it had to pay the merchant for the goods. This scenario thus did not describe an unlawful taking of money or withholding of money from the banks - two typical theories of larceny. By contrast, it might have fit within the statutory definition of larceny by "obtain[ing]" as including "the bringing about of a transfer or purported transfer of property or of a legal interest therein, whether to the obtainer or 9 another," P.L. § 155.00(2) (emphasis added). But the court's charge - by which weight-of-evidence arguments are assessed - contained nothing even suggesting the "or another" prong. In these circumstances, appellant argued in the Appellate Division, these convictions may not stand. The Appellate Division rejected these claims. Invoking People v. Noble, 86 N.Y.2d 814, 815 (1995), it declared it was "'constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant. ,,, Regarding the defective instructions themselves, the panel found that, "[t]o the extent defendant ... is challenging the court's jury instructions, we find those claims to be unpreserved." Appellant asks this Court to find that the Appellate Division employed incorrect legal analysis in its weight-of-evidence review. The People, not he, should have borne the consequences of their failure to object to the charge - a charge that he did not, and had no reason to, contest. After all, "law of the case," which weight-of-evidence review employs, cuts both ways. The other grand-larceny conviction at issue in Point III wrongfully found appellant guilty of stealing a watch from the merchant. Here, appellant argued in the Appellate Division, he (through alleged accomplices) did not take the merchandise without the store's consent - a 10 necessary predicate, according to the court's charge, for conviction. Rather, the only power of consent was exercised by the banks, when they approved the swiped (counterfeit) credit-cards used for the purchase. While instructions on larceny-by-false-promise or by false-pretense might have captured trickery against the store, and thereby its lack of consent, the prosecution sought none and the jury heard none. But here, as well, the Appellate Division wrongly rebuffed appellant's argument, for lack of his objection to the charge. Last, in Point V, appellant argues that the trial court imposed, and the Appellate Division approved, punishment that unconstitutionally taxed appellant for exercising his jury-trial rights, that eschewed updated and mitigating information in violation of due process, and that otherwise treated appellant more harshly than defendants in similar or even more aggravated cases. Containing the relevant facts within it, this Point requests resentencing or remand to the Appellate Division, for constitutionally- conforming review. 11 STATUTE INVOLVED C.P.L. § 310.20(2) Upon retiring to deliberate, the jurors may take with them: 2. A written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon. Whenever the court submits two or more counts charging offenses set forth in the same article of the law, the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to distinguish between the counts. STATEMENT OF FACTS According to Mark McMullen, a CitiGroup fraud investigator, a counterfeit credit-card can be created by "skimming," which involves stealing information from the magnetic strip of a valid card. A "reader writer" can then be used to make and "recode" a physical card with the stolen information. Terms for such cards include "M" (for Mastercard), "V" (for Visa), and "Disco" (for Discover). Associated terms include "bin," which refers to the bank-identification number - the first 6 digits of any credit-card - as banks issue credit-cards (A. 161-70, 175-76, 180-81). A person wishing to use a counterfeit card, McMullen explained, could test it by attempting purchases involving small amounts; or, if the person obtained 12 a merchant-identification code, a call could be made to a clearinghouse to check the card's viability (A. 191-95). Regarding what entity suffers or bears the loss when a person uses a counterfeit card, Gabrielle Nohelty, a fraud investigator at U.S. Bank, explained that, if a merchant swipes the card, which is then approved- called a "swiped transaction" - the issuer-bank typically bears the loss. In other words, it has to pay the merchant (A. 566). The only exception occurs if, for some reason, the card-customer's account has not been charged - "not posted." In that circumstance, if the presenter of the counterfeit card takes the merchandise, the merchant bears the loss (A. 579-85). From January through April 2007, Salvatore Novellino, an investigator with the District Attorney's office, led the investigation into such making and use of counterfeit cards allegedly involving appellant and various others. Specifically, Novellino monitored "thousands" of calls involving two wiretapped phones allegedly used by appellant, whose subscriber was Yvonne Barden, his mother (A. 221-26, 325-33, 357). Elana Lui, another investigator, monitored "dozens" of such calls (A. 123, 127). In many, appellant spoke to his cousin, Jeffrey Barden; in others, he spoke to a woman subsequently identified as Nyiesha Jones, who was then passing 13 herself off as Kimberly Smith; in still others, he spoke to a man named Boris or to people who Novellino and his colleagues called "unknown males" and "unknown females" (A. 226-27, 238, 257, 263-64, 278-85, 303- 06, 360, 640-49). Most of the calls, Novellino and Lui opined, discussed the creation or use of counterfeit credit-cards, and employed code words, such as "square joints" (meaning credit-cards) and "Mjoints" (referring to Mastercards) (A. 235-40,257-64,298-303,340-44). Some concerned the purchase of a so- called "reader writer" (A. 257-61). Still others captured Jeffrey Barden's calling to "test" various credit-cards by seeing whether small purchases could be made with them, or appellant's calling various "clearinghouses," using merchant code-numbers, to see if particular credit-card numbers were still "active" (A. 285, 646-48, 659-62; see also People's exhibit 4). Though Novellino contended that he could recognize appellant's voice because he had heard it so many times while listening to the calls (A. 226), he later qualified this assertion: He acknowledged that he had overheard appellant's voice only once or twice while contemporaneously seeing him - "in the field"- and that he had experienced only one "personal face-to-face" conversation with appellant -. on May 21, 2007, 14 upon arresting him (A. 328-29). As for Lui, she had never engaged in any direct conversations with appellant and had not otherwise heard and seen him at the same time. Rather, she determined that she had heard appellant's voice on the calls because she had seen him appear at places that had been discussed, earlier, in various calls (A. 679-84). These sightings - and others - were the product of visual surveillance, which investigators undertook to observe appellant drive his alleged accomplices - Barden (his cousin), Jones, and another, unidentified woman, who the investigators dubbed "Yankee Girl"- to a variety of Manhattan stores, where they purchased items with counterfeit cards (A. 120-21,221-24; Investigator Frank Pappalardi: A. 687-704).3 More particularly, in early March 2007, Novellino revealed, the investigative team had surreptitiously placed a GPS tracking device underneath appellant's Lincoln Navigator (registered to his mother). The decision to do so - which involved no warrant - had been made after appellant "broke[]" surveillance and confronted one of the investigators (A. 224,242-45, 332, 345-47). It also made following appellant and his cohorts 3 Also a call monitor, Pappalardi had only one conversation with appellant - at his arrest (A. 702). 15 much easier, given the "difficulty especially in Manhattan with the traffic and everything" (A. 243).4 On March 5th, with the GPS affixed to the Lincoln, the team tracked appellant to Best Buy, on 86th St. and Lexington Ave., and from there to Plaza Collectibles, a jewelry store on 57th St., near Sixth Ave. Jeffery Barden, who was appellant's passenger, went into the store. "Kimberly Smith" (Jones), who was in the area, went in as well. When they left, they got in the Lincoln, which then drove off (A. 242-47). Shortly thereafter, appellant allegedly called someone named Boris, trying to sell him a Cartier watch with a stainless steel band and saying that Boris knew how it had been obtained (A. 263-64). As Lee Rosenbloom, the owner of the store, related to investigators later that day, a man (Barden) came in to buy a Cartier Roadster - for $4200 ($3995 plus tax) - and used a Mastercard to try to pay for the full amount. Upon Rosenbloom's swiping the card, that amount was declined, but a subsequent swipe for $2000 was approved. The man signed the receipt as "James Smith," and gave Rosenbloom several other cards in his possession to pay the balance. When these were not approved, Smith said 4 The investigators also tracked Jeffrey Barden's car, but far less; they did not attach a GPS device to it (A. 326). 16 he would return. A few hours later, he called to say that his sister would come by with the outstanding amount. Minutes after the call, "Kimberly Smith" appeared, paid the amount with her own credit-card, which was approved, and left with the watch (A. 132-60). The store used video surveillance, which showed the "Smiths" (People's exhibit 8). And, Novellino maintained, a monitored call between appellant and Barden, while Jones ("Kimberly Smith") was in the store, discussed why she was taking so long (A. 282). According to a Harris Bank fraud investigator, the information on the card used by "James Smith" had been taken, without authority, from one of its customers, Susan Dziura (Horacio Isais: A. 522-30). CitiGroup's fraud investigator provided similar information regarding the card used by "Kimberly Smith"; the information on that card belonged to Adam Smrha (A. 188-90). In the late afternoon of March 5th, Novellino and his team followed the Lincoln to the Best Buy on 44th St. and Fifth Ave. There, Novellino followed "Kimberly Smith" into the store and watched her buy a camera, for $1083.74, including tax. Appellant walked in the store as well, but stayed only a minute, leaving before Smith had made her purchase. The two did 17 not speak and neither approached the other (A. 269-77). Store video showed them, as well as Novellino, in the premises (People's exhibit 13). Smith had presented an Illinois driver's license along with her credit-card (Gilberto DeHoyos: A. 477-85). The person whose information was used on the credit-card, Martin Haugen, was an Illinois customer ofHSBC Bank (Beatrice Hom: A. 556-64). Best Buy's records also showed that "Kimberly Smith" had used that same card to purchase a Sony camcorder that day, for $1132.51 (including tax), at its uptown store, at 86th St. and Lexington Ave. (Frederick Holmes: A. 721-27). Team member Frank Pappalardi also saw appellant and Barden go into Staples, on 44th St. and Fifth Ave., that afternoon (A. 690-92). According to the store's record of receipts, someone that day purchased a "Zune" MP3 player, for $249.99 plus tax, signing a credit-card "John" or "Joanis" Smith. (Jed Weinstein: A. 426-34). The credit-card's information belonged to Jody Waters, a Citizen's Bank customer (Dayanara Nino: A. 490-502). A store security-video showed a "large African American gentleman" making the purchase (Daniel Henson: A. 450-51; People's exhibit 20). Pappalardi identified still photographs taken from the video as depicting appellant and "Yankee Girl" at the counter with the item (A. 699). 18 On March 6th, the surveillance team observed appellant and Barden going to several liquor stores (A. 284). William Rudowski, of Buy Rite Wine & Liquor, recalled that a man came in that day, wanting to buy a high- end brand, Johnnie Walker Blue, for $1700. When the three credit-cards he offered were declined, he got annoyed when Rudowski tossed them back to him. Another man then came in and said he would get his card. Both then walked out, but did not return. Rudowski identified appellant in court as the first man (A. 367-86). The declined cards contained information belonging to CitiGroup customers, including John Scheinpflug (A. 183-98). On March 16th, the surveillance team also followed the Lincoln - driven by appellant, with Barden and "Yankee Girl" (the unidentified woman) as his passengers - to various stores. These included Staples, at 86th St. and Lexington Ave., where Novellino saw appellant buy a laptop (A. 289-90). The credit-card he used bore information belonging to Patrick Quigg, a U.S. Bank customer (Weinstein: A. 426-34; Nohelty: A. 575-80). Appellant and "Yankee Girl" also bought a computer at the Staples on 44th St. and Fifth Ave., using a credit-card whose information was taken from a Chase Bank customer, Kristen Cone (A. 291-94; Martin Lavergne: A. 400; Weinstein: A. 426-34; Henson: A. 448-50). Barden joined them at Syms, on 19 54th St. and Park Ave., buying clothes with a credit-card bearing information from the same Chase customer (A. 293-94, 400; Nancy Marquez: A. 416- 24). On March 17th, according to Brenda Katwaru, of Gamett Wine & Liquor, on Lexington Ave., a purchase was made, by an approved credit- card, for two bottles of Johnnie Walker Black, for a total of $524.56, including tax (A. 462-70). The card, whose information belonged to Quigg, the U.S. Bank customer, had also been used at a Staples the day before (A. 426-34, 576-82). On May 21, 2007, Novellino and his team arrested appellant and Barden (A. 310, 701). During a search of Barden's apartment that day, police recovered "a credit card reader/writer" (Michael Wigdor: A. 605-08). 20 ARGUMENT POINT I THE COURT VIOLATED C.P.L. § 310.20(2) AND THEREBY COMMITTED REVERSIBLE ERROR BY SUBMITTING A VERDICT-FORM THAT, FOR THE OVERWHELMING MAJORITY OF COUNTS, LISTED ALLEGED CRIME LOCATIONS, NOT COMPLAINANTS. A. The court gave the jury an annotated verdict-form, which, as to the vast majority of counts and over appellant's objection, listed the location of the alleged crime. Prior to summations, the court told the parties that it intended to submit an annotated verdict-form to the jury. The prosecutor asked whether the annotations would, like the indictment, identify the "victims." (As reflected in the indictment, apart from count 1, naming Plaza Collectibles, those counts naming a victim alleged a particular bank as the victim.)5 The court responded that it thought "we have to," but then added that it may "just do it by merchant or by bank or who the alleged victim is or [it] may include the date along with the name of the victim." The "C.P.L." allowed a court do it one way, it opined, without either party's consent, but the court needed to check (A. 775-76). 5 More particularly, aside from count 1, all the counts of the indictment charging larceny or criminal possession of stolen property named various banks. The counts that did not name a particular victim charged scheme to defraud, identity theft, criminal possession of a forged instrument, or criminal possession of a forgery device. See A.l 0- 38. 21 At the next court appearance, appellant, through counsel, objected to the court's proposed draft-form, specifically "the mentioning of the locations, the amounts and the date other than the charges and the accounts [sic] ... as unduly prejudicial and ... highlight[ing] for the jury these charges" (A. 782). The court noted appellant's objection but ruled that the sheet conformed to the "Criminal Procedure Law," which, in its view, permitted distinguishing among similar counts "using the dates and things like names of the victim" (A. 783). At the end of its oral charge, the court described the verdict-form as including a "column for the number of account [sic]." The only purpose of "some notations" under the "crime charged" column was "to remind [the jury] of the difference between each of the counts" (A. 924-25). The jury, the court further instructed, could "use that form to assist" it in its deliberations (A. 925). Marked court exhibit 1, the form listed 26 counts, 20 of which resulted in conviction. See A. 1087-88. (When the jury declared an inability to render a verdict on counts 6, 7, and 8, the prosecution dismissed them; and the convictions on counts 10, 12, and 13 were dismissed after trial. See A. 1020, 1023, 1070.) Of the 20 counts of conviction, three listed 22 the complainant as charged in the indictment: counts 1 (Plaza Collectibles), 14 (US Bank), and 22 (JP Morgan Chase). And two others listed no complainant but only the dates of the alleged crime: counts 25 (scheme to defraud) and 26 (possession of forgery devices). For the remaining 15 counts, the verdict-form annotations either substituted a store for the complainant listed in the indictment (verdict-form counts 2 and 3, both charging larceny and substituting Best Buy for Harris Bank and HSBC, respectively); listed a store where the indictment charging the crime included no such complainant (verdict-form counts 4,5, 16, 17, 18,20,21, and 24, all charging possession of a forged instrument; verdict-form counts 9, 11, charging identity theft); or listed a bank where the indictment charging the crime included no such complainant (verdict-form counts 15, 19, and 23, charging identity theft). During deliberations, the jury had inquired, as to "Best Buy, 529 Fifth Avenue," whether, if "the retailer is not paid the price of the item plus tax, for example, due to a fraudulent credit-card transaction, does the retailer still have to payout the tax on that item ... $1, 689.74, $999.99, without tax" (A. 981). Showing the note to the parties, the court observed that it referred to count 3 on the form, which stated: "Grand Larceny in the Fourth 23 Degree (over $1000) (Best Buy 529 5th 3/5/07)." The court then declared its intention to charge the jury on the elements of this crime, as it had in its main charge, including that appellant was alleged to have stolen property, in this instance money, from its owner, HSBC Bank (A. 981-83). According to the court, an "honest response" to the jury's question "depends on the nature of the property and who the victim is" (A. 982). Opining that the notation on the verdict-form "confused" the jurors, the court also intended to tell them that the "Best Buy" notation referred "to the location of the alleged crime only," and to remind them that the notations only meant to distinguish among the counts (A. 983). Apart from omitting its "honest response" musing, the court otherwise then charged the jurors accordingly (A. 986-87). B. Deeming the stores "proxy" complainants, the Appellate Division rejected appellant's argument that the verdict-sheet "crime-location" annotations violated the governing statute. The Appellate Division rebuffed appellant's argument that the controlling statute, C.P.L. § 310.10(2), did not authorize the crime-location annotations and that they effected per se error. Quoting the provision, the panel noted that it permits a trial court to distinguish among similar counts by setting forth "the dates, names of complainants or specific statutory 24 language, without defining the terms." The panel also acknowledged this Court's declaration that "[n]othing of substance can be included [in the verdict sheet] that the statute does not authorize." People v. Miller, 18 N.Y.3d 704, 706 (2012). But, the panel found, the stores qualified as "proxies for the complainants." Even though the stores may have been reimbursed by the banks, "defendant had used the forged cards to obtain goods that he did not intend to pay for from the stores." Thus, the stores had been "affected by defendant's conduct." And the larceny statutes, the panel observed, did not define the crime with respect to a specific "victim," but rather with respect to the property's owner, which included anyone with rights superior to the taker's. See A. 7-8. C. Neither the Appellate Division's complainant-proxy theory nor any other rationale justified the verdict-form annotations - which compel reversal. According to the Appellate Division, a person or place "affected" by a defendant's conduct qualifies for inclusion on an annotated verdict-sheet under C.P.L. § 310.10(2). This so-called "proxy" complainant, however, finds no lawful place in the statute. The "proxy" -based verdict-sheet in appellant's case, therefore, requires reversal. 25 1. The governing statute does not include, and thus does not permit. the listing of "proxy" complainants. The starting point is the plain meaning of the statute. See People v. Laing, 79 N.Y.2d 166, 171 (1992). Courts may not resort to "interpretative contrivances" to broaden a statute's scope. Id. Further, "where a statute describes the particular situations in which it is to apply and no qualifying exception is added, 'an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded. '" People v. Owusu, 93 N.Y.2d 398, 408 (1999) (Bellocosa, J., dissenting) (quoting Matter of Alonzo M. v. New York City Dept. of Probation, 72 N.Y.2d 662, 665-66 (1988)). Here, the statute denotes only three ways a verdict-sheet may be annotated where similar offenses are charged: with "dates, names of complainants or specific statutory language." The legislative history of the 1996 amendment - which introduced the core of the statute at issue here6 - does not support a more generous interpretation of the statute's scope. To be sure, the impetus for the amendment was to empower trial courts to distinguish between two or more charges that might otherwise appear identical. See Letter to the Governor 6 The 1996 amendment was itself amended in 2002, to permit annotations involving offenses "set forth in the same article," not merely those involving "violation of the same section." 26 from Joseph R. Lentol, dated July 3, 1996. But the bill was meant to be "carefully limited," and other proposals, which would have authorized the courts to include "explanatory notations or other text," were rejected. Id. The Legislature did not want to "engender confusion or provide information not contained within the four comers of the statute." Id. And, while the Governor's Memorandum of Approval (#77, approving chapter 630,9/4/96) asserted that the amendment would "restore trial judges' authority to annotate verdict sheets" with "brief explanatory notations," the Memorandum did not attempt to define the precise scope of these "notations." See Governor's Memorandum at 1-2. In fact, as used in § 310.20(2), "complainant[]" serves as a synonym for "alleged victim." That follows from the provision's purpose, expressed in its surrounding language that focuses on the differentiation of two or more similar "counts." After all, counts that allege crimes committed against specified others do not name witnesses or those related to the victims. Reinforcing this conclusion, subdivision 3 permits the court, if requested by the jury, to submit a list of "witness" names. The statute's use of "complainant[]" instead of "victim" also finds ready explanation: The term "victim" assumes the defendant's guilt - which, at the verdict-form 27 submission stage, is yet to be determined. (For example, calling a rape complainant the "victim" during trial would prejudice the defendant who was presenting a consent defense.) By contrast, statutes concerning sentencing refer to the "victim." See,~, C.P.L. §§ 380.50(2) (1) (defining "victim" as "the victim indicated in the accusatory instrument"); 420.10(2). The Appellate Division's ruling thus cannot withstand scrutiny. Its creation and approval of complainant "proxies" - defined as anyone "affected" by a defendant's conduct - would expand the meaning of "complainant" beyond the statute's limits. Aside from including all witnesses, such "proxies" would embrace family members and friends of crime victims as "affected" persons. The Appellate Division's ill-conceived justification for the "proxy"- complainant annotations here bears mention as well. By the panel's lights, the trial court's substitution of a store for a bank (and, implicitly, merchandise instead of money) in the larceny counts simply did not matter in determining appellant's guilt. But it mattered a great deal: Every defendant enjoys the right (N.Y. Const., art. I, § 6) to be tried on charges founded in the indictment. See People v. Martinez, 83 N.Y.2d 26, 33-34 (1993);~, People v. Roberts, 72 N.Y.2d 489,497-99 (1988) (reversing 28 manslaughter conviction where verdict could have been based on evidence of strangulation adduced at trial - a theory not presented to the grand jury and inconsistent with the allegations in the indictment). And Roberts implicitly answered - and implicitly rejected - the Appellate Division's determination that any owner of property, and of different property at that, could be substituted on a verdict form, provided that owner enjoyed rights superior to the defendant's. Roberts declared that, "when the indictment specifies a set of facts supporting a material element of the crime charged," the People are not at liberty to present contrary evidence. 72 N.Y.2d at 497. By the same reasoning, a verdict form may not substitute material facts either. Cf. People v. Spann, 56 N.Y.2d 469 (1982) (where defendant himself testifies to having taken property different from that alleged in the indictment, he suffers no art. 1, § 6 violation upon conviction for that theft). The decision below would tolerate a constructive amendment of the indictment and consequent violation of a defendant's right to trial by indictment. In short, had the Legislature meant to permit the inclusion of "proxies," such as crime locations, for complainants, it could and would 29 have explicitly done so. But it did not, which barred the trial court from doing so. See Miller, 18 N.Y.3d at 706. 2. The 15 notations at issue did not denote complainants. Simply put, the Legislature has rooted the "complainant" in § 310.20(2) in the Penal Law definitions of the crimes and charges in the indictment. The 15 notations at issue wrongly severed that relationship. More particularly, apart from the larceny alleging the theft of property from Plaza Collectibles, the larceny counts of the indictment named specific banks as the complainants. See A. 10, 11, 12,21,23,24,31,34. The court's oral charge did as well, noting also that "money" was the property allegedly stolen from the various banks. See,~, A. 903. But counts 2 and 3 on the verdict-form listed a "Best Buy." As for the identity-theft counts, though names of allegedly violated account-holders dotted the testimony (see,~, A. 188, 190,403-04,575- 77), none of the counts in the indictment named a specific complainant. Still, each count, consistent with P.L. § 190.78 (the core, third-degree, crime), accused appellant of assuming the identity of "another person" and using that person's "personal identifying information." See, ~,indictment counts 22,48,54 (A. 18,31-32,34-35). The court's oral charge 30 incorporated this language. See,~, A. 911. Even respondent acknowledged below that, "[ f]or the identity theft charges, then, those account holders were the victims." Brief for Respondent in the Appellate Division [hereinafter "RB"] at 65. See also C.P.L. § 20.40(1) (expanding geographical jurisdiction in identity-theft cases, to aid "complainant[ s]" whose personal identifying information has been used). But counts 9, 11, 15, 19, and 23 on the verdict-form listed either a store or a bank. Last, second-degree criminal possession of a forged instrument renders culpable the uttering or possessing of a forged instrument, with the intent to defraud, deceive, or injure another. See P.L. § 170.25. The crime does not require that the intent to defraud or deceive be targeted to any specific person or that the defendant attempted to use the forged instrument. See People v. Rodriguez, 17 N.Y.3d 486,490-91 (2011); People v. Bailey, 13 N.Y.3d 67, 73 (2009) (Pigott, J., dissenting in part). Consonant with these principles, the possession counts in the indictment in appellant's case named no complainant. See,~, count 16 (A. 15). And the court's oral charge summarized the elements as knowing possession of forged credit- cards, with the intent to defraud - to which the jury could apply P.L. § 170.27's presumption of knowledge and intent based on possession of two 31 or more forged cards. See A. 906, 910. Accordingly, while the oral charge mentioned various stores, it was only to say to what particular counts the "alleged possession" "pertain[ ed]." See A. 909-10. None of this permitted listing the stores on the verdict form. Nor did the inclusion of "uttered" in the indictment or its single mention ("utters or possesses") in the charge render the stores complainants - for they suffered no loss (A. 904). Bank officials had explained that, if a merchant swiped and received approval for a counterfeit card in connection with a purchase, the issuer-bank bore the loss - i. e., it had to pay the merchant for the goods. In summation, the prosecution acknowledged this: "They presented [a forged credit-card] to the merchant so that the merchant would give them property .... The merchant doesn't pay for it, but the bank does, and the bank is out thousands ... " (A. 845). Respondent also acknowledged this. See RB at 65. And respondent acknowledged as well that, for the counts not involving identity theft (where, as respondent conceded, the account holders were the "victims"), the banks were the "victims" regarding "the counts in which defendant made use of the account holders' information." RB at 65. Simply put, the stores, as the People have recognized, did not qualify as complainants on the possession-of-forged- 32 instrument counts. The court's listing of stores on the eight counts at issue thus violated § 310.20(2). Further acknowledging that the stores were not complainants, respondent attempted to justify the court's use of them: "Of course, it would have been extremely confusing for the jury had the court differentiated the identity theft counts by the names of account holders, while differentiating the counts in which defendant made use of the account holders' information by listing the banks. The most organized and clearest way to differentiate the various counts was to do exactly as the court did here, and that was to group the crimes by the stores at which they occurred." RB at 65-66. According to respondent, the statute gave the court "more latitude than simply referring to the 'victim' in completing the verdict sheet." RB at 65. In fact, however laudable may have been its goal (but see post at 34 n.7), the court violated the governing statute. 3. The wrongful annotations compel reversal of the judgment. In Miller, this Court declared that "harmless error analysis is inappropriate where the limits imposed on verdict sheet annotations by CPL 310.20(2) have been exceeded." 18 N.Y.3d at 709. This ruling, which plainly embraces every type of § 310.20(2) violation, compels per se 33 reversal. 7 And it does so here not only of the 15 wrongfully annotated counts of conviction but of the entire judgment - even were the Court to find fewer than 15 improper annotations. Miller dictates this result: Despite the People's pointed argument to the contrary in that case,8 this Court affirmed the Fourth Department's reversal, on the law, of the entire judgment - which included counts that, unlike the one erroneous (murder) count at issue, contained no tainted annotations. Like the lower appellate court in Miller, see 73 A.D.3d 1435, 1436, this Court automatically and comprehensively reversed without mention, let alone application, of "spillover" [see,~, People v. Baghai- Kermani, 84 N.Y.2d 525, 532 (1994)] analysis. 7 Even though appellant need not show prejudice, he risked conviction in violation of his state constitutional right to trial by indictment. See ante, at 28-29. The jury's note regarding the tax consequences of fraudulent credit-card use evidenced its misunderstanding about who the alleged victim was regarding the fourth-degree grand- larceny count at issue (count 3) - confusion, the court itself admitted, caused by its crime-location verdict-form notation. Though the court answered the jury's query by charging, regarding the count inquired about, that the victim was a particular bank, it had done so in the main charge - where it had also explained that the notations on the form had been placed only to help the jury distinguish among the counts. The jury's question demonstrated the power of the notations, which still claimed an abiding presence in the jury room for the remainder of the deliberations. Aside from causing jury confusion - and the risk of appellant's suffering an art. 1, § 6 violation - these notations may also have prompted at least some of the jurors simply not to grapple with the complex task of sorting out the proof bearing on the actual elements of the crimes. Removal of all the defective notations on the form might have done the trick. But that never happened. 8 See Brief for Appellant, People v. Miller, 2011 WL 8183153, at 23-26. 34 In any event, "spillover" analysis would warrant reversal of the other five convictions. The counts charging grand larceny against Plaza Collectibles (count 1), U.S. Bank (count 14), and Chase (count 22) involved conduct that included identity theft. And the counts charging scheme-to- defraud and possession of forgery devices (counts 25 and 26) spanned the full time-period at issue and encompassed many of the other criminal acts charged. These five crimes were thus "factually related" to the tainted counts. People v. Kelly, 76 N.Y.2d 1013,1015 (1990). At minimum, any surviving convictions warrant plenary resentencing, for, in imposing the maximum sentences permitted upon all the convictions, the trial court may have been influenced by the wrongful ones. See C.P.L. §§ 470.40(1), 470.20(1), (3). The court should have the opportunity to exercise its sentencing discretion without considering them. See,~, People v. Martinez, 81 N.Y.2d 810,811 (1993). 35 POINT II COURT-RULING AND COUNSEL'S INACTION WRONGL Y DENIED APPELLANT THE OPPORTUNITY TO CHALLENGE THE PROSECUTION'S WARRANTLESS INSTALLATION OF A GPS TRACKING-DEVICE ON HIS CAR, CONDUCT THAT VIOLATED PEOPLE V. WEAVER, 12 N.Y.3D 433 (2009) - PENDING PRIOR TO AND DURING HIS TRIAL - AND CONDUCT ABOUT WHICH APPELLANT HIMSELF PRESSED COUNSEL (AND THE COURT) PRIOR TO TRIAL. Law enforcement's installation of the GPS device on appellant's car, by stealth and without a warrant, assumed great importance at trial, culminating in the prosecution's declaration in summation that it constituted a critical tool "to get the verdict that he deserves" (A. 837). Yet counsel, despite having been given discovery documents revealing the installation, having heard his client personally raise the issue in court a month before jury selection, and having heard the trial testimony about it, made no motion to suppress its fruits either before or during trial. Counsel did, however, move at sentencing to set aside the verdict on account of the GPS-derived evidence. He did so based on People v. Weaver, 12 N.Y.3d 433 (2009), which was decided after appellant was convicted but which counsel knew, at least during trial, had been pending. The court summarily denied the motion. 36 In the Appellate Division, appellant argued that the court's denial constituted error. In the alternative, he argued that counsel rendered ineffective assistance by not having moved for suppression before or during trial. The Appellate Division rejected appellant's claims on a variety of grounds. None holds up on examination. A. The record established that law enforcement had installed, surreptitiously and without judicial approval, a GPS device underneath appellant's car. Counsel moved, only after appellant's conviction, to set aside the verdict on account of the fruits of the GPS tracking, invoking People v. Weaver, 12 N.Y.3d 433 (2009), which, after appellant's conviction but before his sentencing, ruled such warrantless installations unconstitutional. The court summarily denied the motion. On the second day of trial testimony, March 16,2009, Salvatore Novellino, the prosecution's lead investigator in the case, stated, on direct examination, that by March 5, 2007, his team had placed a GPS tracking device underneath appellant's car. The team had done so to help "keep track of [appellant's] whereabouts without being exposed and being noticed." The traffic in Manhattan posed a problem. In fact, prior to March 5th, 2007, the team had "lost" appellant on "several occasions." Moreover, on yet another, appellant had confronted a team member who was following him, which had caused the team to break off surveillance (A. 242-44, 333). On cross-examination, counsel elicited that the team had obtained no 37 warrant for the device. It had simply "discussed" the matter and decided on its own that installing the device would be a "great idea," and sought the approval only of Novelli no's supervisor, Terrence Quinn, who gave it "verbally," with "no paperwork to sign off on" (A. 332-35). On redirect, Novellino told the jury that the device did not require a court order (A. 358). Prior to summations, the court permitted appellant to personally voice various claims regarding the "tracking device" used to gather evidence against him. He contended, among other things, that no need had been established for its installation, given the prosecution's use of "surveillance by way of phone, video and photographic surveillance" (A. 793). Thereafter, counsel inquired "from what date the tracking device[ s] were utilized in this vehicle." "[J]ust for the record," the prosecutor responded, "the report concerning the tracking device, when they are installed, when they failed, when they were removed, they had been given over to the defense as part of discovery" (A. 794).9 Counsel, at appellant's instance, then asked the court if it was "aware of the Court of Appeals case currently pending with respect to the usability of tracking devices." The court answered that it was (A. 737). 9 At the end of jury selection, on March 10,2009, the prosecution had also turned over to the defense Novellino's 87-page notebook (A. 54-55). 38 Although the defense - via a previously assigned lawyer - had earlier brought, as part of its omnibus motion, a challenge to the search of appellant's car, on May 31, 2007, pursuant to a warrant - a challenge the court had denied, finding that the affidavit in support of the warrant had supplied probable causelO - trial counsel ll made no motion concerning the warrantless installation of the GPS device. Counsel failed to do so even after appellant, at a pretrial proceeding (on February 18, 2009) had personally addressed the court on the matter. Appellant told the court that the discovery material he had reviewed had not revealed a warrant and he asked if the court would entertain a motion to suppress for lack of one. The court responded that it could not remember whether or not it had seen a warrant application and advised appellant that his "remedy at this point" was to "point ... to some specifics" and it would then "listen to his application at that time." A.45-47. On May 12, 2009, following the jury's verdict (on March 31, 2009), this Court ruled, in People v. Weaver, 12 N.Y.3d 433 (2009), that the warrantless installation of a GPS device on a suspect's car presumptively 10 See Decision and Order Ind. 2379/07, dated December 18,2007. A. 1089-90. 11 Assigned on May 14,2008 (endorsements, Supreme Court file). 39 violates the State Constitution. See id. at 445. 12 Accordingly, it ordered that Weaver's "motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered." Id. at 447. On July 17,2009, prior to appellant's sentencing, counsel filed a C.P.L. § 330.30(1) motion. Among the grounds that, counsel contended, would, in accordance with the statute, require reversal as a matter of law upon appeal was the court's error "in permitting evidence regarding the use of ... GPS devices ... on the vehicle allegedly used by the defendant without first obtaining a Court ordered Warrant, see People v. Weaver, 12 N.Y.3d 433 ... for the purposes of tracking his movements without his knowledge or consent." See Notice of Motion, Ind. 2379/07, 7117109, 'if'if 3 & 4 (A. 1092-93). By written response, the prosecution observed that Weaver had not been decided until after the verdict. It then sought to distinguish Weaver, arguing that, in appellant's case, "a court had found probable cause to eavesdrop, and probable cause to use the GPS of [appellant's] phone." People's Response to Defendant's Motion to Set Aside the Verdict and Dismiss the Indictment Pursuant to CPL § 330.30, Ind. 2379/07, 7/23/09, 'if'if 12 According to the Court's calendar, available on its website, oral argument in Weaver occurred on March 24, 2009. 40 4 &5 (A. 1095-96). Acknowledging that the GPS device was attached to appellant's car on March 1,2007, and active until March 14th, the prosecution noted that the investigators were also using the GPS information from appellant's phone. But the prosecution also recounted the need for the GPS on the car: "[I]nvestigators tried to follow the defendants as they drove through New York City, but given the traffic conditions of the city, it was impossible to do this type of surveillance without either losing the suspects, or having them see that they were being followed." Id. at ~~ 6 & 7 (A. 1096). Arguing that the People had probable cause to install the device on appellant's car - because they had established probable cause for the wiretapping and the GPS monitoring of his phone - the prosecution finally contended that, "once the car was located [on March 5th] at East 86 Street and Lexington Avenue, the rest of the police investigation was done the old fashioned way - by tailing the defendant, by observing him as he went on his crime spree, by interviewing witnesses and gathering evidence." Id. at ~ 10 (A. 1097). At sentencing, on July 30, 2009, the court stated that it had "reviewed the motion and the People's response." It then ruled: "The motion is denied." A. 1040. 41 B. Appellant was wrongly denied the opportunity to challenge and suppress the fruits of the warrantless GPS installation on his car. Invoking a variety of rationales, the Appellate Division rebuffed appellant's arguments that the summary denial constituted error or his attorney's performance violated federal- and state-constitutional norms. According to the panel, the GPS installation and surveillance did not violate Weaver. Even ifit had, or otherwise had violated the Federal Constitution, appellant suffered no prejudice and thus could not prevail on an ineffective- assistance claim. This was so, according to the panel, because the device was featured in testimony relating to only one day's surveillance, and other unrelated and untainted evidence regarding that day established appellant's guilt. In any case, the panel opined, an attorney's failure to anticipate a change in the law did not render him ineffective. See A. 2-5. The Appellate Division's opinion is flawed at every tum. Whether pursuant to counsel's § 330.30(1) motion or in consequence of finding counsel ineffective, appellant merits a hearing on his claim that the warrantless installation of the GPS underneath his car produced fruits that reversibly tainted the verdict. 42 1. The GPS installation and use in this case violated this Court's decision in Weaver. As an initial matter (and bearing relevance to both the § 330.30(1) motion and the ineffectiveness argument), the warrantless GPS installation and surveillance in this case violated Weaver. That result obtains even assuming, based on the prosecution's discovery-report (which respondent explicitly, and the Appellate Division implicitly, relied on), that the device was attached to appellant's car "for about three weeks" but worked for "only two," and did not track "continuously" but had to be "activated before it collected and provided any location data." RB at 39. (Novellino explained the activation system to the jury, noting that, when the agents wanted to locate the car, they would dial a number and the GPS system would provide its location (A. 242).) Weaver simply does not tum on such fine distinctions. What mattered: that the GPS did not "present[] ... the use of a mere beeper to facilitate visual surveillance during a single trip." 12 N.Y.3d at 441. Novellino's testimony (like the People's C.P.L. § 330.30(1) response) also showed that no exigent circumstances excused the lack of a warrant. Instead of simply discussing the efficacy of the device with each other, 43 Novellino and his supervisor (and the prosecutor) could readily have sought the approval of a judge. 13 2. The GPS tracking played a significant role in the investigation and trial. Next, even under this less-than-fully-developed record (as compared to what a dedicated fruits-inquiry, with sworn testimony, might reveal), the GPS-derived evidence played no mere "minimal role" in the prosecution's case that might preclude a finding of prejudice concerning the § 330.30(1) motion and ineffectiveness arguments. At trial, Novellino mentioned the device's use on one day. But that day - March 5, 2007 - spawned counts 1-27 of the 61-count indictment and counts 1-13 of the 26-count verdict-form. See A. 10-21, 1087-88. That day involved events at Best Buy (one on Lexington Ave., another on Fifth Ave.) and Plaza Collectibles. According to Novellino, the GPS enabled his team to track appellant's car to the Best Buy on Lexington, and from there to Plaza Collectibles. No video or testimony established that appellant ever entered Plaza Collectibles. And while store-video showed him inside the 13 As the nation's high court decided three years after appellant's trial, the installation by stealth of a GPS device itself effects a government trespass, which violates the defendant's Fourth Amendment rights. See United States v. Jones, 565 U.S. _, 132 S.Ct. 945 (2012). 44 Best Buy on Fifth Ave. for a minute, it did not show him making any purchases there; nor did it show him speak to or approach the woman who did. As for the Best Buy on Lexington, the store's records showed only a purchase by a woman. (In fact, in summation, the prosecutor told the jury that appellant had not gone inside any of the stores on March 5th or 6th (A. 838).) After March 5th, according to the prosecution's § 330.3 O( 1 ) response, the investigation may have been conducted the "old fashioned way[,] by tailing the defendant, by observing him as he went on his crime spree, by interviewing witnesses and gathering evidence." (According to respondent's summary of the discovery report, the report's account of March 6th "does not state that the team used information obtained from the GPS to locate defendant or his car." GPS was used on March 8th• And, on March 14th, the device ceased to function. RB at 34-35.) At the very least, the GPS on the car evidently greatly aided the investigators' continuing ability to "tail[]" appellant on March 5th • How else to make sense of the prosecution's acknowledgment in its § 330.30(1) response that following appellant's car in Manhattan was otherwise "impossible"? 45 Moreover, the investigators' visual sightings of appellant, enabled by the GPS - during the entire period of its operability - apparently proved useful to the prosecution's case on the matter of appellant's voice. Absent the visual tracking, the prosecution had numerous voice recordings of a man they claimed was appellant - but no exemplar of appellant's voice. Novellino's claim that he recognized appellant's voice rested on his having heard it once or twice "in the field" during visual surveillance - itself a likely suppressible fruit of the GPS - and upon arresting him. Investigator Lui - a call monitor, who listened to many conversations allegedly involving appellant - effectively demonstrated law enforcement's dependence on the GPS to identify appellant when she explained that she made her voice identification based on her seeing him leaving various stores. The prosecution's summation put to rest any doubt of the importance of the GPS to the prosecution's case: "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 46 [was] necessary to take certain steps to be able to get the evidence that we can bring to court to get the verdict that he deserves" (A. 837). 3. The particular circumstances of this case warrant the finding that counsel rendered ineffective assistance. Last, given the particular circumstances of this case, appellant's ineffectiveness arguments cannot be dismissed as seeking to employ a standard of attorney prescience or as otherwise inconsequential. New York's standard for the effective assistance of counsel has long been whether the defendant was afforded "meaningful representation," People v. Benevento, 91 N.Y.2d 708, 712 (1998), which requires assessing the representation in light of the law and the facts of the case, ordinarily viewed in their totality at the time of trial, see People v. Baldi, 54 N.Y.2d 137, 147 (1981). Moreover, counsel's failure must have seriously compromised the defendant's right to a fair trial. See Benevento, 91 N.Y.2d at 713. The federal standard requires demonstration that the attorney's performance failed to meet an objective standard of reasonableness and that, but for counsel's deficiency, a reasonable probability exists that the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 688-94 (1984). 47 Essentially, this State's standard agrees with the federal standard on its so-called first ("reasonableness") prong; New York's cases depart on the second ("but for") prong, "adopting a rule somewhat more favorable to defendants." People v. Turner, 5 N.Y.3d 476,480 (2005). In all events, both the nation's and this State's high courts have recognized that "a single [ omission] in an otherwise competent performance [may be] so egregious as to deprive a defendant of his constitutional right." Id. (internal quotation marks and citations omitted); accord People v. McGee, _ N.Y.3d _,2013 WL 1149163 (2013); People v. Baker, 14 N.Y.3d 266, 270 (2010). Establishing such a claim requires showing the strength of the omitted tactic, see Turner, 5 N.Y.3d at 481, as well as the absence ofa strategic or other legitimate explanation for the error, see Baker, 14 N.Y.3d at 270-71. Counsel's failure to move to suppress the fruits of the warrantless installation of the GPS device cannot be excused under either the federal or state test. Though expressing his awareness that Weaver was pending in this Court during appellant's trial-leave to appeal had been granted by the dissenter in the Appellate Division many months earlier, on July 22,2008, 48 see 10 N.Y.3d 966 (2008) - counsel took no pre- or midtrial steps that would have readily protected his client's rights. Given that the discovery material, according to the prosecutor, referred to the GPS attachment and surveillance but obviously contained no warrant or warrant application for the device, counsel could have made a pretrial motion to suppress. Indeed, appellant himself had raised the issue with the court prior to jury selection, and the court had responded that it would listen to an application, if pointed to "some specifics." At the least, counsel should have moved to suppress during trial, after the prosecution's lead investigator made crystal clear that the device was installed without any judicial approval. See C.P.L. § 710.40(2) (permitting motion to be made "for the first time when, owing to unawareness of facts constituting the basis thereof or to other factors, the defendant did not have reasonable opportunity to make the motion previously"); cf.,~, People v. Kneitel, 33 A.D.3d 816 (2d Dept. 2006) (reopening of suppression hearing properly denied, where allegedly "additional facts" concerned location of defendant's car prior to his arrest, a fact of which he was presumed to have knowledge). Assuming the court would have denied the motion on the merits - given the then-controlling Appellate Division majority opinion in Weaver 49 that installing a GPS did not constitute a search, 52 A.D.3d 138, 141-43 (3d Dept. 2008)14 - competent counsel would nonetheless have preserved the claim. After all, this Court's freshly minted ruling would apply on direct appeal. See,~, People v. Jean-Baptiste, 11 N.Y.3d 539, 542 (2008) ("Under traditional common-law principles, cases on direct appeal are generally decided in accordance with the law as it exists at the time the appellate decision is made.") (internal quotation marks and citation omitted).15 (The new decision would also have applied to the C.P.L. § 330.30(1) motion - to set aside the judgment on a legal ground requiring reversal on appeal- by the time of appellant's sentencing.) 14 See Mountain View Coach v. Storms, 102 A.D.2d 663, 664 (2d Dept. 1984) ("[1]f the Third Department cases were, in fact, the only New York authorities on point, the trial court followed the correct procedural course in holding those cases to be binding authority at the nisi prius leveL"). 15 Though ultimately decided on state constitutional grounds, federal constitutional principles permeated Weaver. See 12 N.y'3d at 443-44 (quoting from the nation's high court cases recognizing that citizens are not '" shorn of [all Fourth Amendment protections] when they step from the sidewalks into their automobiles'" and that a "'motorist's privacy interest in his vehicle is ... important and deserving of constitutional protection"'); id. at 444 (quoting from high court's decision emphasizing "'adherence to judicial processes'" and disapproving searches "'without prior approval by judge or magistrate"'). Weaver observed that, while the GPS issue then remained "open as a matter of federal constitutional law," the "very same [federal constitutional principles] are, however, dispositive of this matter under our State Constitution." 1d. at 445. Because, then, "Federal constitutional principles are involved" in Weaver, the "automatic retroactivity rule" applies. People v. Martello, 93 N.Y.2d 645,650 (1999), citing Griffith v. Kentucky, 479 U.S. 314 (1987) (new constitutional rule applies retroactively to all cases pending on direct review). Cf. Martello, 93 N.Y.2d at 651,654 (new rule of pure state-statutory law triggered application of state retroactivity analysis). 50 Appellant acknowledges that People v. Brisson, 68 A.D.3d 1544 (3d Dept. 2009), declined to find ineffective an attorney who failed to bring a GPS suppression motion six months before this Court's Weaver decision. The Third Department declared that counsel was "not required to anticipate a change in the applicable law." Id. at 1547. That court also found that counsel's strategy of focusing on the legality of the stop of his client's car rather than on the warrantless attachment of the GPS device "might well have been pursued by a reasonably competent attorney." Id. (internal quotation marks and citation omitted). Brisson does not dictate the outcome here. First, as this Court has held, an attorney who "overlook[ s]" an "open issue" critical to his client's case has rendered ineffective assistance. People v. Nesbitt, _ N.Y.3d_, 2013 WL 1195696 (2013) (noting that the Court's controlling - and favorable - decision was rendered after defendant's trial). It therefore follows that an attorney who fails to advocate on his client's behalf on such an issue - of which he is on notice - has also performed deficiently. Put in the concrete terms of appellant's case, neither the Federal nor State Constitution should excuse an attorney from making a suppression motion - with no conceivable downside - premised on the reasonable and 51 imminent possibility of a favorable decision by the State's high court of which the attorney is or becomes aware. That the attorney's awareness of the impending decision comes at least in part if not in whole through his client - a client who is otherwise demonstrably keen on challenging the evidence at issue - renders the attorney's inaction even more inexcusable. Cf. Government of Virgin Islands v. Forte, 865 F.2d 59, 62-63 (3d Cir. 1989) (acknowledging the rule that counsel is not to be judged by "20/20 hindsight" but finding an exception where the defendant specifically advised the attorney of the pendency of Batson in the Supreme Court and asked him to preserve the issue). The attorney's failure to use the available procedural tools to make such a claim - where, as here, counsel evidently appreciates the claim's potential merit - thus constitutes ineffective assistance. Cf. People v. Sanchez, 76 A.D.3d 122, 129-30 (1 st Dept. 2010) (counsel was not ineffective for failing to anticipate law that "evolved in the two years following his conviction" and where appellate counsel could not articulate what objection counsel could have interposed to the trial court to afford any relief upon the law then prevailing). Moreover, Brisson's additional finding - that competent counsel simply might have chosen to ignore the GPS installation in favor of 52 focusing on the legality of the stop of his client's car - simply cannot be applied to appellant's case, where law enforcement's various surveillance techniques produced the prosecution's case against him and where the defense otherwise challenged them (in addition to challenging the search of the car itself). See A. 1089-90 (Decision and Order Ind. 2379/07, Dated December 18,2007 (denying defense's several suppression motions challenging eavesdropping warrants)). Competent counsel would be expected to use every arrow in his quiver to challenge all of these techniques and their fruits. *** With the Appellate Division's purported roadblocks eliminated, appellant's entitlement to relief is clear. This Court may find that, given its substantive content, counsel's § 330.30( 1) motion implicitly invoked § 710.40(2) (allowing for a belated motion to suppress). Given, as well, the prosecution's waiver of any timeliness or other procedural objections to the § 330.30(1) motion,16 a waiver respondent acknowledges, see RB at 45-46, this Court may conclude that the trial court erred in summarily denying the motion. Or, this Court must find that counsel rendered deficient 16 See,~, People v. Mezon, 80 N.Y.2d 155, 159-60 (1992); People v. Lawrence, 64 N.Y.2d 200,206-07 (1984). 53 representation in failing to take the appropriate steps to preserve and vindicate his client's rights under Weaver. In either event, so that all beneficial avenues of attack may now be brought on appellant's behalf, the judgment should be reversed and a new trial ordered, to be preceded by a hearing on a motion to suppress the fruits of the warrantless GPS installation. Alternatively, the appeal should be held in abeyance and the matter remanded for the suppression hearing. 54 POINT III THE APPELLATE DIVISION FAILED TO PROPERL Y CONDUCT WEIGHT-OF-EVIDENCE REVIEW OF APPELLANT'S CHALLENGES TO HIS LARCENY CONVICTIONS. The jury convicted appellant of four counts of grand larceny premised on his stealing money from various banks - whose client-information appellant and his alleged accomplices purportedly used to create credit cards with which to buy goods from assorted merchants. See verdict-form counts 2, 3, 14,22 (A. 1087-88); corresponding counts 6,8,35, and 53 of the indictment (A. 12,24,34); see Uniform Sentence & Commitment sheet (A. 1121-25). The jury convicted appellant ofa fifth grand-larceny count based on his having stolen a watch from a store, Plaza Collectibles. See verdict-form count 1 (A. 1087); count 1 of the indictment (A. 10). In the Appellate Division, appellant argued that these convictions contradicted the weight of the evidence (see C.P.L. § 470.15(5)) under the court's charge as given. He noted that the defense had not objected to the charge. But he sought no relief regarding the charge itself. To the contrary. He emphasized that the errors and omissions in the charge that rendered the People's proof lacking had all been to the People's detriment - and they had failed to object. 55 Rejecting appellant's arguments, the Appellate Division invoked Peoplev. Noble, 86 N.Y.2d 814,815 (1995) -. declaring it was "'constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant. '" Regarding the defective instructions themselves, the panel found that, "[t]o the extent defendant ... is challenging the court's jury instructions, we find those claims to be unpreserved." A. 5. In this Court, appellant contends that a "fair reading of the [panel's] decision indicates" that it employed an inapt and wrong standard - to appellant's detriment - in its weight-of-evidence review. People v. Pasley, 9 N.Y.3d 342, 349-50 (2007). Where a court's charge on the elements of a crime arguably eases the prosecution's obligations of proof, that charge controls on weight-of-review, absent the defendant's objection. But where, as here, critical omissions or defects in the charge on a crime's elements undermine the prosecution's case, the prosecution must bear the consequences on "weight-of-evidence" review. 56 A. Under mutually reinforcing weight-of-evidence review and law-of- the-case doctrine, either the defendant's or the prosecution's failure to object to the charge may be dispositive - depending on the nature of the error. In conducting weight-of-evidence review, aside from conducting credibility assessments, the court must also evaluate the proof of the crime's elements. That is, even if the defendant may have failed to preserve any claimed insufficiency of proof as to a particular element, the reviewing court must, in weight-of-the-evidence review, "weigh the elements of the crime as charged to the other jurors" - "for even if the prosecution's witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt." Pasley, 9 N.Y.3d at 348-49.17 See,~, People v. Johnson, 10 N.Y.3d 875, 878 (2008) (where Appellate Division's decision considered the credibility of witnesses in its weight-of-evidence review but the decision did not manifest elements-based review, remitting to that court to conduct such review). The reviewing court thus applies "law of the case" doctrine. This principle applies to a trial court's removal of an alleged element, which will, absent the defendant's objection, inure to the defendant's detriment. See, 17 The Court thus rejected the prosecution'S argument that allowing such review would "simply be tantamount to back-door sufficiency review." Id. at 346. 57 ~, Noble, 86 N.Y.2d at 815 (where defendant's knowledge of drug's weight was not charged as an element to the jury and he failed to request it, weight-of-evidence review correctly eschewed it). Similarly, the defendant will meet rejection, on appeal, in using a non-statutory and unrequested gloss of an element to argue insufficiency. See,~, People v. Dekle, 56 N.Y.2d 835, 836-37 (1982) (finding "neither constitutional nor jurisprudential error in permitting guilt to be determined under a penal statute as construed by the common assumption of both attorneys and the court"). In other instances, however, removal of a theory or other charge- deficiency may disadvantage the prosecution. See,~, People v. Dlugash, 41 N.Y.2d 725,731 (1977) ("We believe that the evidence in the record would support a reasonable inference that Dlugash intentionally aided Bush in killing Geller and destroying telltale evidence. However, the trial court refused to permit the jury to consider this theory and the question of accessorial liability is, therefore, out of the case."); People v. Malagon, 50 N.Y.2d 954, 956 (1980). In such instances, the defense's lack of objection to the charge does not matter. As discussed below, the trial court's charge-errors fell into this latter category. 58 B. The court's unobjected-to charge required the prosecution to prove that appellant wrongfully "took" money from the banks - which the prosecution failed to do. Regarding the alleged thefts against the banks, the charge provided, in relevant part: A person steals property and commits larceny when with the intent to deprive another of property or to appropriate that property to himself or to a third person, such person wrongfully takes or obtains or withholds such property from an owner of the property. Now some of the terms used in this definition of steals property have their own special legal meanings .... Starting with property. Property means any money, personal property or thing of value .... A person wrongfully takes or obtains or withholds property from an owner when that person takes property without an owner's consent and exercises dominion and control over that property for a period of time however temporary in a manner wholly inconsistent with the owner's rights .... The crime of larceny is complete when a person has the intent to deprive or appropriate the property permanently and that person wrongfully takes the property for any period of time however temporary .... The People are therefore required to prove beyond a reasonable doubt ... [that] the defendant ... acting in concert with others wrongfully took, obtained or withheld property that is money from its owner [the] Bank (A. 898-902; see also A. 903-04). 59 Thus, while the court told the jury, consonant with P.L. § 155.05(2), that larceny includes a wrongful taking, obtaining, or withholding of another's property, it omitted - without prosecutorial objection - P.L. § 155.00(2)'s special definition of "obtain." That definition describes "obtain[ing]" as including, but not limited to, "the bringing about of a transfer or purported transfer of property or of a legal interest therein, whether to the obtainer or another" (emphasis added). The charge did not merely fail to contain this statutorily broadened - and counterintuitive - understanding of "obtain." Compare § 155.00(2) with,~, Black's Law Dictionary (abridged 6th ed.), at 743 (defining "obtain" as "to get hold of by effort; to get possession of; to procure; to acquire in any way"), and American Heritage Dictionary (3d ed.), at 575 (defining "obtain" as "to succeed in gaining possession of; acquire"). The charge narrowed the "special legal meaning" of "takes, obtains or withholds" to one word: "takes." Measured by this charge, appellant argued to the Appellate Division, he stole no money from the banks. Neither he nor his alleged colleagues ever physically took any - which might have been the case had they used counterfeit cards to obtain ATM withdrawals. Cf.,~, People v. Esquilin, 60 37 A.D.3d 197, 197-98 (1st Dept. 2007) (defendant took money from bank by making "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). Respondent made no effort to argue any such taking. Nor did appellant withhold the banks' money. Aside from the court's having reduced the "special meaning" of withholds to "takes," the prosecution, appellant noted, never offered to the court or jury respondent's appellate theory of withholding - based on a card holder's failure to pay a credit-card bill. Accordingly, appellant countered, such a theory, offered by respondent, see RB at 27-28, was beyond review. See People v. Chavis, 91 N.Y.2d 500, 506 (1998). Last, appellant argued, the charge permitted no legitimate determination he had "obtain[ ed]" the banks' money. Put to the side that the charge had equated obtaining with taking. Even under a common understanding of "obtaining" as "acquiring," the prosecution's proof was wholly lacking. Unlike the defendant in Esquilin, who not only took but arguably first obtained - i.e., acquired - the victim-bank's money when it credited the phantom deposits to his account, no evidence even suggested 61 that appellant and his cohorts ever had any such access to the affected banks' monies. Rather, as Gabrielle Nohelty, the U.S. Bank fraud- investigator, explained, if the illegitimate credit-card was swiped, the bank bore the loss vis-a.-vis the merchant, who was thus entitled to payment from the bank. True, appellant acknowledged, P.L. § 155.00(2)'s statutorily enhanced definition might allow a jury-finding that the user of a counterfeit credit-card has unlawfully "obtain[ed]" the issuing bank's money by causing it to transfer money to the merchant. But, contrary to respondent's principal defense below, see RB at 26-27, nothing in the charge delivered by the trial court below remotely suggested this "or another" addition. The nature of the charge deficiency bore striking similarity to that in People v. Ford, 11 N.Y.3d 875 (2008). Ford stood trial for first-degree robbery under the "uses or threatens the immediate use of a dangerous instrument" subdivision, P.L. § 160.15(3), a theory requiring proof of actual possession. See 11 N.Y.3d at 877 n.1. The trial court, however, had not charged the actual-possession element to the jury, and Ford had not requested it. See id. at 877-78. On appeal, this Court rejected his (in)sufficiency claim, which had argued the lack of proof of actual 62 posseSSIOn. Evaluating the claim under the "charge as given without exception," id. at 878, this Court refused to find that reference to "the knife" in the court's charge alerted the jury to the actual-possession element, see id. at 878-79. It observed, "[m]ore than a subtle verbal clue was necessary for the jury to be put on notice of its obligation to decide whether defendant actually possessed a knife; it is not enough for an instruction merely to imply the elements of a crime. Simply put, the charge in this case did not use the term 'actual possession,' or in any other way convey that requirement to the jury." Id. at 878. In appellant's case, the court did not offer even a verbal clue that remotely suggested the statutorily broadened - and unnatural- definition of "obtain." The lack of preservation regarding the charge in Ford inured to the defendant's prejudice, for this Court measured his (in)sufficiency claim against the charge as given - a claim he lost. See id. at 877-79. Parity of reasoning requires holding the prosecution to the charge as given in appellant's case under weight-of-evidence review - a claim, appellant maintains, that he should win. 63 C. The court's unobjected-to charge required the prosecution to prove that appellant took the watch from the merchant without the store's consent - which the prosecution failed to do, as the charge included no theories of larceny by false promise or false pretense. As charged by the court, appellant committed grand larceny against Plaza Collectibles only ifhe (through his accomplices) wrongfully took the watch, that is, without the merchant's consent (A. 898-900, 1001, 1007). The proof, however, did not establish a wrongful taking from the store. The evidence showed that only after the credit-cards tendered for the watch's payment were swiped and approved did the watch leave the premises. This did not establish the store's lack of consent - for the power of approval (consent) resided with and was exercised by the issuer-banks. Fortifying this conclusion, the swipe and approval itself, a U.S. Bank official explained, meant that the credit-card issuers - i.e., banks- suffered the loss, as they were bound to pay the merchant in such circumstances. See also A. 737 (prosecutor, in colloquy with court and defense, echoing this testimony and asserting that "the value of the watch .. . is the value that the bank has 10st,,).18 18 Put another way, in these circumstances, the issuer banks, not the merchant, were the only larceny victims. Counts 2 and 3 of the indictment charged fourth-degree grand larceny premised on the fraudulent credit-card use during the Plaza Collectibles transaction. Count 2 named Harris Bank as the owner of the stolen property - i. e., money; count 3 similarly named Citibank. See A. 10-11. Apparently without objection (continued ... ) 64 True, larceny includes conduct previously defined as "common law larceny by trick," P.L. § 155.05(2)(a), which may embrace such acts as using a counterfeit credit-card to purchase merchandise and vitiate any consent - arguably including the merchant's - induced by such acts. Theories based on such conduct may include larceny by false promise or false pretense. While charging instruments need not specify a particular theory of larceny other than extortion, see P.L. § 155.45, the jury does require instruction on the applicable theories in the case before it. See,~, People v . Watson, 284 A.D .2d 212, 213 (1 st Dept. 2001) (While "the grand larceny count of the indictment did not specify a theory of larceny, ... the court instructed the jury as to the theories of larceny by false promise and false pretense.")19; People v. Sala, 258 A.D.2d 182, 189-90 (3d Dept. 1999) (observing that the People must allege the particular theory upon which they are relying at trial, and noting that the jury was instructed on a theory of material concealment or omission); People v. Ponnapula, 229 A.D.2d 257, 273 (1 st Dept. 1997) (verdict deemed "unassailable" where the evidence 18( ... continued) by the prosecution, the court decided not to submit either count to the jury (A. 778). 19 That the conviction of larceny - by either theory - constituted "only one offense" merely obviated the need for juror unanimity regarding anyone theory. Id. (internal citations omitted). 65 supported "one or both theories" (of larceny by false pretenses or false promise) charged to the jury). Cf. People v. King, 85 N.Y.2d 609,619 (1995) (noting that a "moral certainty" charge must be given in a false- promise case); People v. Stuart, 51 A.D.3d 547,548 (1st Dept. 2008) (court's charge properly included a "false pretenses" theory). Here, however, the prosecution made no request for instructions on any such theories, and the court gave none. Thus, even if Plaza Collectibles were deemed the victim whose consent was at issue, they were unavailable for use on appeal in assessing this weight-of-evidence claim. Cf. Dlugash, 41 N.Y.2d at 731. Therefore, the store's consent would stand. And from that should follow the weight-of-evidence determination that appellant committed no wrongful taking against it. *** The Appellate Division improperly conducted the elements-based weight-of-evidence review in this case. Accordingly, this Court should reverse and remit to that court for proper review. 66 POINT IV BY PEREMPTORILY REJECTING APPELLANT'S REQUESTS FOR A VOICE-IDENTIFICATION EXPERT TO CHALLENGE THE PROSECUTION'S CASE THAT HIS VOICE WAS ON THE WIRETAPPED CALLS, THE COURT ABUSED ITS DISCRETION. Prior to and throughout the trial, appellant, personally and through counsel, made repeated requests for the appointment of a voice expert, to challenge the prosecution's contention that the voice on the wiretapped calls was his. In the first such request, made February 18,2009, counsel stated that, according to his client, "some calls ... attributed" to him "were not by him" and that other people had access to his cell phone. The court expressed "three issues it saw": the lateness of the request, its doubt that the expert "field" was "recognized," and the court's lack of knowledge regarding how much the prosecution's case depended on appellant's voice being recognized or identified in court. Saying that the request had to be in writing, the court opined that it could not see itself granting it. A. 44-45. On March 9th, in response to appellant's second (also oral) request, which also sought clarification, the court, pretermitting any other considerations, stated what "was [its] previous" and "still is [its] ruling: The application was denied because the matter was "not for an expert to 67 determine"; if the evidence showed anything on the wiretaps that was "unclear," the defense could argue that to the jury. A. 53. The court noted its denial in response to appellant's subsequent requests. See A. 58, 130-31, 749, 791. The court's categorical ruling reflected the failure to exercise discretion, which constituted error that abridged appellant's fundamental constitutional rights. The Appellate Division's summary ruling to the contrary cannot be sustained. The criminally accused possesses a "fundamental" right "to present his own witnesses to establish a defense." Washington v. Texas, 388 U.S. 14, 19 (1967). The indigent accused possesses this right no less than the affluent. Thus, "a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense." Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (due process required providing indigent defendant the expert services of psychiatrist where defendant had made preliminary showing of need for his mental-state defense). This State honors and implements Ake's due-process commands, through statute. See County Law § 722-c; ~, People v. Hatterson, 63 68 A.D.2d 736, 736 (2d Dept. 1978) (reversing for denial of defense § 722-c motion for employment of physician and psychiatrist). The statutory regime does not give the indigent any manner of expert simply for the asking. Rather, the defense must make a showing to the trial court of "necessity and relevance." People v. Drumgoole, 234 A.D.2d 888, 890 (4th Dept. 1996) (upholding court's denial of expert appointment). Where, moreover, the accused seeks funds for payment of an expert in excess of the presumptive statutory maximum of$1000, the defense must make an additional, and greater, showing - of "extraordinary circumstances." § 722-c. As precedent demonstrates, assuming the indigent defendant makes the requisite showing of relevance and need, these principles entitle him to the services of "an independent court-appointed spectrographic expert to conduct voice identification analysis." People v. Tyson, 209 A.D.2d 354, 354-55 (1 st Dept. 1994). Given that the evidence regarding the reliability of such analysis is conflicting, however, see People v. Jeter, 80 N.Y.2d 818, 821 (1992), the court should hold a "preliminary hearing ... to determine the scientific reliability of the test," in the event the expert concludes that the voice at issue is not the defendant's, Tyson, 209 A.D.2d at 355. 69 The court's refusal to provide appellant a voice-identification expert thus cannot stand. Its automatic (and dispositive) determination that the subject was "not for an expert to determine" constituted legal error. Absent a hearing, the court could not properly have reached any such conclusion. See Jeter, 80 N.Y.2d at 821 (decision to admit such evidence must be preceded by a "preliminary inquiry into reliability"); Tyson, 209 A.D.2d at 355. The court's application of the "wrong standard" thus itself warrants redress. People v. Cronin, 60 N.Y.2d 430,432 (1983). In any event, the circumstances of the case otherwise established the relevance and necessity for the appointment of an expert. The prosecution sought to connect appellant to the many overheard calls that purportedly bespoke fraudulent intent and planning for virtually all the crimes charged. Investigator Novellino claimed to recognize the caller's voice as appellant's, based on his having overheard appellant "in the field" and, like investigator Pappalardi, upon arresting him. Investigator Lui claimed to circumstantially connect appellant to the calls - in that she observed appellant going to places that the caller had discussed earlier. No surprise, then, that the prosecution's summation emphasized the calls, with appellant's voice allegedly on them, as critical to its case. For example, the 70 prosecutor contended that the calls showed "the planning" for the crimes, beginning with appellant's purportedly ordering the "reader-writer"; that his alleged use of code words reflected criminal intent; and that it showed, as well, his accessorial liability (A. 834-35, 838-39). Summing up her case, the prosecutor, referring to the calls, proclaimed, "It's all there" (A. 835). As for counsel's counter-argument that the People failed to prove that appellant's voice was on the calls (A. 823), the prosecutor brushed it off as an "insult to [the jury's] intelligence" (A. 843). Scientific evidence that appellant's voice was not on the calls would, therefore, have severely damaged the prosecution's case. See Tyson, 209 A.D.2d at 355 (in finding that defendant made the requisite showing, observing that favorable expert results "could have severely damaged the complainant's credibility"); cf. People v. Williams, 160 A.D.2d 754, 754-55 (2d Dept. 1990) (denial of voice-exemplar evidence in robbery case not an abuse of discretion, where the robber spoke very few words and the victim's identification was based on factors other than the assailant's voice). The judgment should be reversed and a new trial ordered. Alternatively, the appeal should be held in abeyance, the application (implicitly for funds) to obtain an independent spectrographic expert 71 granted, and the matter remanded for a hearing to determine the admissibility of spectrographic evidence in the event the expert reaches an exculpatory result. See Tyson, 209 A.D.2d at 354-55. 72 POINT V APPELLANT'S SENTENCE VIOLATED HIS DUE- PROCESS, JURY-TRIAL, AND PROPORTIONATE- PUNISHMENT RIGHTS, AND OTHERWISE CONSTITUTED AN ABUSE OF DISCRETION AS A MATTER OF LAW. A. After vacating its original determination that appellant was a predicate felon, the court, over the defense's constitutionally grounded obiections, imposed an aggregate first-felony-offender sentence that, by its operation, reduced appellant's original punishment by only eight months. Appellant was originally sentenced on July 30, 2009. At this proceeding, the prosecution filed a predicate-felony statement, charging that, on March 11, 1994, appellant had been convicted "of the felony of Conspiracy to Commit an Offense against the United States, in violation of U.S.C.A. 1951." Without objection by the defense as to whether the federal crime in fact constituted the equivalent of a New York felony, the court declared appellant a second-felony-offender (A. 1063-64). Before imposing sentence, the court heard from the parties regarding appellant's additional criminal history. The prosecutor noted only that appellant had pled guilty to second-degree robbery in 1987, adding "[t]hat is not the basis for predicate status in this case" (A. 1078). Counsel observed that this crime had "happened 22 years ago when [ appellant] was avery, 73 very young man," and urged the court to consider that mitigating when imposing sentence (A. 1079). Though neither the parties nor the court discussed it, the Probation Department's pre-sentence report ("PSR") also noted the robbery conviction, listing the year as 1986 and the punishment as 54 months' incarceration (PSR at 3,4). The only other conviction the report noted was one for attempted fourth-degree criminal possession of a weapon, in 1992, for which appellant paid a fine (PSR at 3). This crime, the report noted, was a misdemeanor (PSR at 4). The court cited two bases for the punishment it was about to impose. First, it deemed appellant's criminal history "fairly extensive." Second, it answered defense counsel's plea for leniency, which had described the instant crime as a three-day "spree" that had involved property worth $18,000, which counsel considered not an enormous sum in light of other cases. In the court's opinion, appellant would have "gone unstopped" had it not been for law enforcement's "concurrent investigation" of him (A. 1077, 1082-83). The court then meted out the maximum predicate sentence of3 Yz to 7 years for the D felonies and 2-to-4 years for the E felonies, see P.L. § 70.06(3), (4), the two degrees of the crimes of conviction. Grouping the convictions by what it deemed the victims - Plaza Collectibles, U.S. Bank, 74 and Chase Bank - the court imposed concurrent sentences within each group but made the punishment of each group consecutive to the others. In total, the sentences aggregated to 14 to 28 years' imprisonment (A. 1083- 85). (Only the sentences for scheme to defraud and possession of forgery devices were made to run concurrently to each other and to all the other sentences (A. 1084).) Appellate counsel thereafter brought a C.P.L. § 440.20 motion, which challenged the federal crime as not constituting the equivalent of a New York felony. In an opinion and order dated April 27, 2011, the court found the challenge meritorious, and thus vacated appellant's predicate-felon sentences and ordered him resentenced as a first-felony-offender. See A. 1099-1100. The resentence occurred on May 10,2011. The People requested imposition of an aggregate 9 1I3-to-28-year term - based on the same sentencing scheme the court originally employed, but substituting maximum first-felony-offender sentences - i.e., 2 113 to 7 years for each D felony and 1 113 to 4 years for each E felony (A. 1104-05). The defense asked for a lesser sentence. Counsel observed that, by operation ofP.L. § 70.30(1)(c), appellant's original sentence had been 10 to 75 20 years and the People's proposed sentence now would be virtually the same - 9 1/3 to 20 years. This, counsel contended, would not adequately recognize appellant's non-predicate-felon status. Next, after noting, without challenge by the court or prosecutor, that appellant had never been offered a plea in this case, counsel cited the disparate - and favorable - treatment accorded his co-defendant (his cousin), who had pled guilty to third-degree grand larceny and received a 2-to-4-year term. Appellant, counsel urged, ought not be penalized for having exercised his constitutional right to trial - especially where, for all that appeared, he had been given no choice (A. 1105-08). Counsel argued as well that appellant ought not be punished for what the court, at the prior sentencing, opined he might have done but for law- enforcement's serendipitous intervention. For example, counsel observed, the law classifies and punishes attempts less severely than completed crimes. In any event, counsel contended, appellant had not been convicted of conspiracy and the court could not properly enhance his sentence based on what it thought was in his mind (A. 1106-07). As for the crimes appellant was convicted of committing, counsel noted that the total value of the property at issue amounted to $18,000. Though not "nothing," when 76 considered in comparison to other similar cases, it did not merit maximum punishment CA. 1109). Turning to appellant's incarceration history, counsel asserted, without challenge by the court or prosecution, that appellant had received only one "ticket" in the preceding four years of his imprisonment on this case - for allegedly refusing a frisk in 2008 - but it had been "dismissed or wasn't sustained" CA. 1108). Appellant himself told the court that he had spent a fair amount of his time trying to break up fights among inmates. Regarding his personal circumstances, appellant added that his mother had been suffering poor health, and so a reduced sentence might enable him to care for her CA. 1111). Counsel concluded that the court should impose a punishment substantially less than that urged by the People, in any case one not exceeding a 12-year aggregate maximum. To do otherwise would violate appellant's federal and state due-process rights to fair and reliable sentencing and would constitute an undue burden on his federal and state constitutional jury-trial rights CA. 1109-10, 1112-13). The court, however, imposed the sentence that the prosecution requested. As justification, it again cited appellant's prior record, including 77 the federal conviction, which, in its view, involved a major crime. And, regarding the current case, it cited the "sheer number of crimes" of conviction (A. 1113-18). B. Appellant's amended sentence violated his due-process, jury-trial, and proportionate-punishment rights; at minimum, it constituted an abuse of the court's discretion as a matter of law. The Appellate Division summarily rejected appellant's challenges to his punishment, finding no basis for any reduction "as a matter of law" or otherwise. A. 8-9. In fact, however, by essentially imposing the same sentence that it had imposed when appellant was (wrongly) found a predicate felon, notwithstanding appellant's changed circumstances, including his unblemished institutional record, and also in disregard of the disparately favorable treatment accorded appellant's co-defendant cousin, the trial court committed constitutional error. At the least, the court abused its sentencing discretion as a matter of law. See, u., People v. Naranjo, 89 N.Y.2d 1047, 1049 (1997). More, the Appellate Division's rubber-stamping of the sentence was at unconstitutional odds with sentence reductions in other, similar cases. First, insofar as the amended sentence reduced only appellant's minimum term, and by a mere 8 months, it did not take meaningful account 78 of his changed, non-predicate-felon, status. Rather, according to the court (both at the original and subsequent sentencing), appellant's prior record itself warranted harsh punishment. But that record in fact contained only one felony - from almost 25 years ago - and two other crimes that qualified only as misdemeanors in this State. The court's elemental unfairness on this score alone violated federal and state due process. Also evidently falling on deaf judicial ears was the defense's plea that the court take into account appellant's mother's failing health and appellant's lack of disciplinary problems while incarcerated during the preceding four years. (As appellant noted, without challenge by the prosecutor, not only had he not caused any problems but he had tried to quell inmate fights.) The court's apparent unwillingness to consider appellant's relevant and updated personal circumstances also violated his federal and state due-process rights to reliable sentencing. See generally id. (to satisfy due-process, sentencing court "must assure itself that the information upon which it bases the sentence is reliable and accurate") (internal quotation marks and citation omitted); cf.,~, United States v. Quinieri, 306 F.3d 1217, 1230 (2d Cir. 2002) (district court, at resentencing, must take into account changed circumstances). 79 Moreover, the great disparity in punishment between appellant and his co-defendant cousin, who pleaded guilty to third-degree grand larceny and received a two-to-four-year sentence, warrants redress. Many multiples of that imposed on the co-defendant, appellant's sentence should be deemed an unconstitutional abuse of discretion, unduly punishing him for having exercised his jury-trial rights and arbitrarily treating him vastly differently from his co-defendant, in violation of due process. See U.S. Const., amends. VI, XIV; N.Y. Const., art. I, §§ 2, 6. Of course, the government "may encourage a guilty plea by offering substantial benefits, notwithstanding the fact that every such instance is bound to have the concomitant effect of discouraging a defendant's assertion of trial rights .... [I]t is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea." People v. Pena, 50 N.Y.2d 400, 411-12 (1980). Fundamental fairness, however, imposes limits on this doctrine. It is one thing to tolerate a moderately increased sentence after trial of a defendant who received but then balked at a plea-offer condition - the situation in Pena. See id. (after rejecting plea offers of 2 to 4 years and 3 to 6, defendant received 5 to 10). It is quite another to allow the extreme disparity here - which appellant himself, unlike 80 Pena, did not invite. Compare,~, People v. Jones, 39 N.Y.2d 694,698 (1976) (defendant not punished for "insist[ing] upon the right to a trial," where she rejected a plea offer and received the minimum sentence permitted following her trial conviction), with People v. Slobodan, 67 A.D.2d 630,630 (1 st Dept. 1979) ("disparity is so great" between co-defendants' plea-bargained sentences and defendant's post-trial sentence "as to raise serious questions as to whether appellant is not being penalized for going to trial"; sentence reduced); People v. Williams, 46 A.D.2d 783, 783-84 (2d Dept. 1974) (same - notwithstanding a probation report presenting "a most unflattering picture of appellant's past derelictions,,).2o Last, the court focused on what it deemed the enormity of appellant's crimes (seeking to mute counsel's argument that, at the original sentencing, the court had sought to punish appellant not only for what he had done but what the court thought he might have done if not caught). The Appellate Division's peremptory rejection of any sentencing relief betrayed additional constitutional harm in this regard. 20 As noted ante at 76, neither the prosecution nor the court contradicted counsel's sentencing argument that appellant had received no pretrial plea offers. Respondent, below, contended that preliminary plea discussions had occurred but had not gone anywhere. See RB at 78 n.18. Given the severity of his after-trial sentence, and its comparison to the lenient sentence accorded the co-defendant, appellant suffered a violation of his jury-trial rights regardless. 81 Consider the relief it has accorded defendants with less than spotless records and in arguably more aggravated cases: ~,People v. Schonfeld, 68 A.D.3d 449,449-50 (1 st Dept. 2009) (reducing to 8 Yz to 17 (thus by half) the predicate-felon defendant's sentence for multi-count larceny - including first-degree grand larceny - and fraud convictions involving numerous victims and millions of dollars); People v. Rodwin, 283 A.D.2d 242,242 (1 st Dept. 2001) (reducing 5 to IS-year sentence, imposed on a guilty plea to first- degree grand larceny, to 3 to 9); People v. Maryea, 157 A.D.2d 605,606 (1st Dept. 1990) (in reducing first-degree robbery sentence from 8 113 to 25 to 4 to 12, noting defendant's prior history of misdemeanor theft-convictions); Slobodan, 67 A.D.2d at 630 (reducing 8 113 to 25 first-degree robbery sentence to 10 years' maximum and no minimum). That court has thus reduced sentences to terms less than the punishment imposed here not only for first-degree grand larceny - that is, in cases involving stolen sums far in excess of the aggregate $18,000 and third-degree grand larceny charges here - but even for violent larcenies, i.e., robbery, including where, as here, the defendant's record is not unblemished. 82 In these circumstances, appellant has also suffered sentencing disproportionality, in violation of the protection against cruel and unusual punishment. u.s. Const., amends. VIII, XIV; N.Y. Const., art. I, § 5. Appellant deserves constitutional redress. His sentence should be reversed and the case remanded for resentencing to the trial court. See Naranjo, 89 N.Y.2d at 1048. Alternatively, the case should be remanded to the Appellate Division for a constitutionally proper review of his sentence. See People v. LaSalle, 95 N.Y.2d 827,829 (2000). 83 CONCLUSION THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED (POINT I); THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED, TO BE PRECEDED BY A SUPPRESSION HEARING CONCERNING THE WARRANTLESS GPS ATTACHMENT, OR THE APPEAL SHOULD BE HELD IN ABEYANCE AND REMANDED FOR THE HEARING (POINT II); THE JUDGMENT SHOULD BE REVERSED AND A NEW TRIAL ORDERED OR THE APPEAL HELD IN ABEYANCE FOR THE APPOINTMENT OF A VOICE SPECTROGRAPHIC EXPERT AND, IF FURTHER WARRANTED, A HEARING ON THE ADMISSIBILITY OF SUCH EVIDENCE (POINT IV); THE CASE SHOULD BE REMANDED TO THE APPELLATE DIVISION TO CONDUCT PROPER WEIGHT-OF-EVIDENCE REVIEW OF THE FIVE GRAND-LARCENY CONVICTIONS (POINT III); APPELLANT'S SENTENCE SHOULD BE V ACATED THE CASE REMANDED TO THE TRIAL COURT FOR RESENTENCING OR THE CASE SHOULD BE REMANDED TO THE APPELLATE DIVISION FOR CONSTITUTIONALL Y APPROPRIATE REVIEW OF THE SENTENCE (POINT V). Respectfully submitted, ROBERT S. DEAN Attorney for Defendant-Appellant r~'#.L~ - Susan H. Saloiiion Of Counsel May 15,2013 84