The People, Respondent,v.Trevor Anderson, Appellant.BriefN.Y.February 14, 2017To be argued by A. ALEXANDER DONN (15 minllles) Court of Appeals STATEOFNEWYORK PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TREVOR ANDERSON, Dejimdant- Appellant. BRIEF FOR DEFENDANT-APPELLANT July 13, 2016 LYNNW.L. FAHEY A. ALEXANDER DONN Attorneys for Defendant-Appellant 111 John Street, 9th Floor New York, N.Y. 10038 T: (212) 693·0085 F: (212) 693·0878 APL-2016-00051 TAJ:l~E QF <;QNTENTS TABLE OF A!JTHORJTIES ......................................................................... iii PRELIMINARY STATEMENT .................................................................... 1 QUESTIONS PRESENTED ........................................................................... 2 SUMMARY OF ARGUMENT ...................................................................... 3 STATEMENT OF FACTS Introduction ........................................................................................... 8 Appellant's Mistrial............................................................................ 1 0 The Sandoval Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0 The People's Case ............................................................................... 11 The Defense Case ............................................................................... 1 7 The Defense Summation .................................................................... 17 The Prosecutor's Summation and PowerPoint Presentation .............. 17 Deliberations and Verdict ................................................................... 27 Defense Counsel's Post-Verdict Remarks .......................................... 28 The Appeal. ......................................................................................... 29 ARGUMENT Point I THE TRIAL COURT'S SANDOVAL ERROR WAS NOT HARMLESS BECAUSE APPELLANT COULD HAVE PROVIDED TESTIMONY, SUCH AS THAT HE SHOT THE COMPLAINANT BUT DID NOT INTEND TO KILL HIM, THAT, IF BELIEVED, WOULD HAVE RESULTED IN HIS ACQUITTAL ..................................................................................... 30 Point II DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT WHEN, DURING THE PROSECUTOR'S SUMMATION, HE DISPLAYED AN 80-SLIDE POWERPOINT PRESENTATION THAT CONTAINED NUMEROUS ALTERED TRIAL EXHIBITS, INCLUDING A VERSION OF APPELLANT'S ARREST PHOTO ONTO WHICH PREJUDICIAL TEXT HAD BEEN INSERTED; A MISLEADING TIMELINE OF EVENTS; AND SLIDES CONVEYING THE PROSECUTOR'S OWN ASSESSMENTS OF THE DEMEANOR AND CREDIBILITY OF THE PEOPLE'S WITNESSES ................................................................... 40 CONCLUSION ............................................................................................. 55 11 TABLE OF AUTHORITIES CASES Brown v. State, 18 So .3d 1149 (Fla. Dist. Ct. App. 2009) ...................... 42-43 Hawthorne v. Schneiderman, 695 F.3d 192 (2d Cir. 2012) .......................... 41 In re Glasmann, 175 Wash.2d 696 (Wash. 2012) ............................ 7-8, 42, 51 People v. Ashwal, 39 N.Y.2d 105 (1976) ..................................................... 48 People v. Bailey, 58 N.Y.2d 272 (1983) ....................................................... 49 People v. Baldi, 54 N.Y.2d 137 (1981) ........................................................ 41 People v. Benevento, 91 N.Y.2d 708 (1998) ................................................ 41 People v. Boodrow, 42 A.D.3d 582 (3d Dept. 2007) .............................. 38-39 People v. Bouton, 50 N.Y.2d 130 (1980) ..................................................... 47 People v. Carborano, 301 N.Y. 39 (1950) .................................................... 48 People v. Crimmins, 36 N.Y.2d 230 (1975) ................................................. 31 People v. Davis, 72 A.D.3d 1274 (3d Dept. 2010) ....................................... 38 People v. Dickman, 42 N.Y.2d 294 (1977) ............................................ 31, 36 People v. Feingold, 7 N.Y.3d 288 (2006) ..................................................... 35 People v. Ferguson, 82 N.Y.2d 837 (1993) .................................................. 48 People v. Fielding, 158 N.Y. 542 (1899) ...................................................... 47 People v. Grant, 7 N.Y.3d 421 (2006) ............................... 3, 31, 32,37-38,39 People v. Heatley, 116 A.D.3d 23 (4th Dept. 2014) ..................................... 35 111 People v. Jones, 55 N.Y.2d 771 (1981) .......................................................... 2 People v. Lovello, 1 N.Y.2d 436 (1956) ....................................................... 49 People v. Owens, 69 N.Y.2d 585 (1987) ...................................................... 52 People v. Paperno, 54 N.Y.2d 294 (1981) .................................................... 49 People v. &:!!Y, 7 N.Y.3d 277 (2006) ....................................................... 5, 36 People v. Reddick, 65 N.Y.2d 835 (1985) ...................................................... 2 People v. Rodriguez, 268 A.D.2d 446 (2d Dept. 2000) ................................ 39 People v. Sanchez, 98 N.Y.2d 373 (2002) .................................................... 35 People v. Sandoval, 34 N.Y.2d 371 (1974) ............................................ 31,36 People v. Santiago, 22 N.Y.3d 740 (2014) ........................................ 51-52, 53 People v. Singleton, 66 A.D.3d 1444 (4th Dept. 2009) ................................ 38 People v. Siriani, 27 A.D.3d 670 (2d Dept. 2006) ........................................ 39 People v. Smith, 18 N.Y.3d 588 (2012) ........................................................ 32 People v. Sullivan, 68 N.Y.2d 495 (1986) ........................................... 4, 34-35 People v. Williams, 56 N.Y.2d 236 (1982) ................................... 3, 32, 33-34 People v. Wright, 25 N.Y.3d 769 (2015) ....................................... 5, 41-42, 53 People v. Wright, 41 N.Y.2d 172 (1976) ...................................................... 48 State v. Herbin, 1 7 4 Wash. App. 1078 (Wash. App. 2013) ..................... 7, 45 State v. Kemble, 291 Kan. 109 (Kan. 2010) ........................................... 42, 43 State v. Reineke, 266 Or.App. 299 (Or. Ct. App. 2014) .......................... 7, 45 iv State v. Rivera, 437 N.J. Super. 434 (App. Div. 2014) ............................ 7, 45 State v. Walker, 182 Wash.2d 463 (Wash. 2015) ..................................... 6, 42 Strickland v. Washington, 466 U.S. 668 (1984) ........................................... 41 Watters v. State, 313 P.3d 243 (Nev. 2013) .................................... 6, 7, 44-45 CONSTITUTIONAL PROVISIONS U.S. Const., Amend. VI ................................................................................ 40 U.S. Const., Amend. XIV ....................................................................... 30, 40 N.Y. Const., Art. I, § 6 ............................................................................ 30, 40 OTHER AUTHORITY Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High- Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 Fordham L. Rev. 1453 (2007) ...................................................................................... 52 Lucille A. Jewel, Through A Glass Darkly: Using Brain Science and Visual Rhetoric to Gain A Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237 (2010) .......................................................................... 8, 52 Kyle C. Reeves, POWERPOINT IN COURT: The Devil's Own Device or A Potent Prosecution Tool?, Prosecutor, Oct-Nov-Dec 2014 26 ...... 6, 43, 52 v COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- TREVOR ANDERSON, Defendant-Appellant. PRELIMINARY STATEMENT By permission of the Honorable Eugene F. Pigott, Jr., Associate Judge of the Court of Appeals, granted February 25, 2016, appellant Trevor Anderson appeals from an order of the Appellate Division, Second Department, entered July 29, 2015, affirming a judgment rendered on January 3, 2012, by the Supreme Court, Kings County, convicting him, after a jury trial, of attempted murder in the second degree and criminal possession of a weapon in the second degree and sentencing him to concurrent terms of 20 years of incarceration for attempted murder and 15 years for criminal possession of a weapon. On March 24, 2016, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel on appeal. Appellant is 1 incarcerated pursuant to the judgment. No stay has been sought. Appellant had no co-defendants. The Court has jurisdiction pursuant to C.P.L. § 450.90(1) to entertain this appeal. The first issue, the propriety of the Appellate Division's harmless error determination, is properly before the Court because an Appellate Division harmless error determination presents a question of law. People v. Reddick, 65 N.Y.2d 835, 836 (1985). The second issue, that counsel was ineffective for failing to object to a PowerPoint presentation displayed during the prosecutor's summation, does not require preservation to present a question of law. People v. Jones, 55 N.Y.2d 771 (1981). QUESTIONS PRESENTED ( 1) The trial court's Sandoval error was not harmless because appellant could have provided testimony, such as that he shot the complainant but did not intend to kill him, that, if believed, would have resulted in his acquittal. (2) Whether defense counsel was ineffective for failing to object when, during the prosecutor's summation, he displayed an 80-slide PowerPoint presentation that contained numerous altered trial exhibits, including a version of appellant's arrest photo onto which prejudicial text had been inserted; a misleading timeline of events; and slides conveying the prosecutor's own assessments of the demeanor and credibility of the People's witnesses. 2 S~YOFARGUMWNT I Appellant, who had no prior convictions and whose first trial ended in a hung jury, was the first potential witness on the defense's witness list. Before trial, the court ruled that, if he testified in his own defense, the prosecutor could elicit that he had previously "possess[ ed]" two guns, and he did not testify at trial. The Appellate Division, Second Department, correctly held that the trial court's Sandoval ruling was improper, but it erred in determining that the error was harmless. "Harmless-error analysis in the context of Sandoval 'does not involve speculation as to whether a defendant would have testified if the legal error had not occurred."' People v. Grant, 7 N.Y.3d 421, 425 (2006) (quoting People v. Williams, 56 N.Y.2d 236, 240 (1982)). Instead, the analysis "assum[es] that he [would] testify," and the error is harmless only if''there is nothing to which he could legitimately have testified" that would have resulted in an acquittal. Grant, 7 N.Y.3d at 425 (emphasis added). Here, to convict appellant of attempted murder in the second degree, the People were required to prove beyond a reasonable doubt that he intended to "cause the death" of the complainant, Erick Brown-Gordon, who was the new boyfriend of appellant's ex-girlfriend, Diana Perez. At trial, 3 Brown-Gordon testified that appellant confronted him on the street late at night and fired at him from about seven feet away. According to the medical records, Brown-Gordon was struck by two bullets. There was no evidence that the shooter threatened to kill him or said anything to indicate such an intent. Therefore, even assuming, arguendo, that appellant was the shooter, the proof that he intended to kill Brown-Gordon was far from overwhelming. Indeed, the jury asked for the definition of "intent" during its deliberations. Under these circumstances, the Sandoval error was not harmless because there was plausible testimony that appellant could have provided that would have resulted in his acquittal if credited by the jury. Most obviously, he could have acknowledged shooting Brown-Gordon, but testified that he did not intend to kill him. See People v. Sullivan, 68 N.Y.2d 495, 502 (1986) (second-degree murder requires a "finding of a specific design to effect death -- not merely an intent to shoot"). Appellant could also have testified that he intended only to frighten Brown-Gordon by firing the gun near him, but not at him, or that the gun discharged accidentally. Alternatively, appellant could have testified that he approached Brown-Gordon to confront him verbally about his relationship with Perez, noticed Brown-Gordon do something that led him to believe Brown-Gordon 4 was about to use deadly force against him, and fired in self-defense. Indeed, such testimony could negate the requisite intent to kill even if it did not establish that the shooting was legally justified. See People v. Petty, 7 N.Y.3d 277, 280-83 (2006) (defendant who shot decedent in neck was acquitted of second-degree murder after testifying that he fired gun because he felt his life was in danger, even though jury rejected justification defense and convicted him of first-degree manslaughter). Accordingly, since there was testimony appellant could have provided that would have affected the jury's determination of his guilt, his conviction should be reversed and a new trial ordered. II This Court recently emphasized that defense counsel's failure to object to improper summation arguments can, standing alone, constitute ineffective assistance of counsel. People v. Wright, 25 N.Y.3d 769, 770-71 (2015). In Wright, defense counsel's only error was his "fail[ure] to object, time and again, when the prosecutor misrepresented to the jury critical DNA evidence as proof of defendant's guilt." Id. at 771. The Court reversed the conviction, holding that a defendant is deprived of meaningful representation and a fair trial when counsel "fails to object when faced with 5 a pattern of prosecutorial misstatements far afield from acceptable argument." Id. at 780. In this case, defense counsel was ineffective for repeatedly failing to object to the contents of an 80-slide PowerPoint presentation that dominated the prosecutor's summation. Appellate courts in other states have held that it is reversible error to include altered trial exhibits in a PowerPoint presentation displayed during summation. See,~' State v. Walker, 182 Wash.2d 463, 478, 489 (Wash. 2015); Watters v. State, 313 P.3d 243 (Nev. 2013). As the very prosecutor who tried appellant's case recently wrote in a trade publication, "PowerPoint can quickly become the noose that prosecutors put around their own necks" when it is used to "show[] the jury things that were not properly received in evidence." Kyle C. Reeves, POWERPOINT IN COURT: The Devil's Own Device, or A Potent Prosecution Tool?, Prosecutor, Oct-Nov-Dec 2014 26, at 27. Here, 16 slides in the prosecutor's lengthy PowerPoint presentation were altered trial exhibits. One slide was a version of appellant's arrest photo that the prosecutor had altered by drawing a circle around appellant's face and inserting, around it, numerous text boxes. The text boxes, which were pointed at appellant's face if he were a target, contained characterizations of the trial evidence like, "Lay in wait for Erick Brown- 6 Gordon with .45 cal handgun" and "Fired .45 handgun twice from less than 8 feet away." Similar slides have been held improper by appellate courts in other jurisdictions. See Watters, 313 P.3d at 247 (improper to alter defendant's arrest photo in PowerPoint presentation); State v. Reineke, 266 Or.App. 299, 303, 311 (Or. Ct. App. 2014) (same); State v. Rivera, 437 N.J. Super. 434, 447 (App. Div. 2014) (same); State v. Herbin, 174 Wash. App. 1078 (Wash. App. 2013) (same). The prosecutor also altered the complainant's medical records, which indicated that he had been shot only twice, by adding captions asserting that he had actually been shot four times. In post-verdict remarks before appellant's sentencing, defense counsel asserted that "four bullets did not hit the complaining witness." Yet when the prosecutor displayed the improper slides to the jury and made related remarks orally, counsel did not object. The prosecutor's PowerPoint presentation was blatantly improper for other reasons as well. One slide displayed an inaccurate and confusing timeline of events that had not been introduced into evidence, and numerous others showed text depicting the prosecutor's favorable assessments of the "demeanor," "body language," and "credibility" of the People's witnesses. The prejudice from the improper slides was exacerbated by the outsized impact that visual information has on jurors. See, ~, In re Glasmann, 17 5 7 Wash.2d 696, 708-10 (Wash. 2012); Lucille A. Jewel, Through A Glass Darkly: Using Brain Science and Visual Rhetoric to Gain A Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237, 289-90, 293 (2010). Nevertheless, defense counsel objected to only one ofthe slides. Because of the prosecutor's misconduct and defense counsel's repeated lapses, appellant received neither the effective assistance of counsel nor a fair trial. STATEMENT OF FACTS Introduction Appellant was indicted for attempted second-degree murder and related offenses in connection with the shooting of Eric Brown-Gordon, his ex-girlfriend Diana Perez's new boyfriend. His first trial resulted in a hung JUry. Appellant, who had no prior convictions, was the first potential witness on the defense's witness list. Before the second trial, the court ruled that, if appellant testified in his own defense, the prosecutor could elicit that he had previously "possess[ ed]" two guns. He did not testify at trial. Brown-Gordon testified that, as he followed Perez down the street during a late-night argument, appellant suddenly appeared, identified himself as "Trevor," and shot Brown-Gordon multiple times. Perez, who 8 was extremely intoxicated during the incident, testified that she saw appellant on the street just before the shooting and that he pushed her into a cab with him shortly after it. Although Brown-Gordon claimed that he had been shot four times (twice in the abdomen and twice in the back), his medical records showed that he had been shot twice, in the abdomen, and that two of his four wounds were "exit wounds." During his summation, the prosecutor played an 80-slide PowerPoint presentation. Sixteen of the slides were altered versions of trial exhibits. The last slide displayed a version of appellant's arrest photo that the prosecutor had altered by drawing a circle around appellant's face and inserting numerous text boxes around the circle. Some slides were photographic exhibits or medical records that the prosecutor had altered by adding text or other markings. Others were versions of a witness's phone records that the prosecutor had altered by removing certain call details. Another slide created by the prosecutor displayed an inaccurate and confusing timeline of events. Some of the 52 consecutive slides that addressed the credibility of the People's witnesses flatly conveyed the prosecutor's own assessments of their demeanor, attitude, and credibility. The jury, which deliberated over the course of two days and asked for the definition of "intent," found appellant guilty of attempted murder in the 9 second degree and criminal possession of a weapon in the second degree. Affirming appellant's conviction, the Appellate Division, Second Department, held that the trial court had improvidently exercised its discretion in its Sandoval ruling, but that the error was harmless. Appellant's Mistrial Hon. Bruce Balter declared a mistrial during appellant's first trial after the jury, which had been deliberating for eight days, sent its third note indicating that it was deadlocked (A 5, 6).1 The Sandoval Ruling Appellant was the first person named on the defense's witness list (A 476). According to the prosecutor, appellant had testified before the grand jury that "[h]e wasn't there, ... he was somewhere else" (A 11). In their Sandoval application prior to appellant's second trial, before Hon. Joseph McKay, who had agreed to render new Sandoval and Molineux rulings (A 7-8), the People sought permission to cross-examine appellant, a former police officer in Georgia, regarding "his familiarity [with] firearms" and his "dismiss[ al] from the [police] force" for using "excessive force" (A 14). In addition, under Molineux, the People sought to introduce 1 Numbers in parentheses preceded by "A" refer to the pages of Appellant's Appendix. 10 evidence that appellant had, "sometime shortly before" the instant incident, shown his ex-girlfriend, Diana Perez, "a couple of guns in his apartment" (A 7-8, 14-15). The prosecutor asserted that this evidence would show appellant's "intent" (A 14-15). The court ruled that, for Sandoval purposes, appellant could be asked about "possession of two guns that somebody else saw" (A 21 ). The court did not make an on-the-record ruling regarding the other parts of the People's Sandoval request (A 21). The court denied the Molineux application, finding that "intent" was not "a good enough basis" to permit the information on the People's case-in-chief(A 21). The People's Case Diana Perez and appellant began dating in 2008, while living across the street from each other in Brooklyn (A 101-02). They broke up sometime in mid-2009, and Perez subsequently began dating the complainant, Eric Brown-Gordon (A 100-02 [Perez]; A 227-28 [Brown-Gordon). Appellant never indicated that he was jealous of Brown-Gordon and Perez's relationship, and neither of them ever had any problems with appellant (A 163 [Perez]; A 282 [Brown-Gordon]). 11 Perez and Brown-Gordon spent the night of March 13, 2010, drinking hard liquor at Brown-Gordon's house in Brooklyn (A 136 [Perez]; A 231 [Brown-Gordon]). Although Brown-Gordon had less than one "cup" of liquor, Perez drank "all night" and had consumed at least 14 ounces of hard liquor by 10:00 p.m. (A 106-07, 139, 147 [Perez]; A 231 [Brown-Gordon]). She became "very intoxicated" and got into a heated argument with Brown- Gordon's cousin (A 136, 142 [Perez]; A 231-34 [Brown-Gordon]). By midnight, Perez was "dizzy" and "really couldn't see that much" (A 106-07). Perez spoke on the phone with appellant a number of times throughout the night (A 11 0). She was unable to remember anything either she or appellant said during any of their conversations except that, during one call, appellant said, "I'm outside" (A 111, 144, 146). Perez went outside, taking with her all of the belongings she kept at Brown-Gordon's apartment, and walked "towards the middle of the street to walk home" (A 111-12, 146, 149-51 [Perez]; A 275 [Brown-Gordon]). Convinced that Perez was too drunk to drive or even to walk down the street safely, Brown-Gordon followed her outside and they argued in front of the house (A 112-13, 149-52 [Perez]; A 232-35, 259 [Brown-Gordon]). Then, with Brown-Gordon following her, Perez started walking along Stanley Avenue, in the middle of the street, toward Pine Street (A 113, 153 12 [Perez]; A 235 [Brown-Gordon]). Along the way, she noticed a shadow between two parked cars, "like somebody walking," and, looking again, saw that it was appellant (A 113-14, 153, 155-56). Perez "kept walking" and "heard gunshots" (A 155). Brown-Gordon testified that, as he followed Perez on Stanley A venue, he "was ... stopped" by a man who said, "Yo" (A 236). Brown-Gordon responded, "Who are you supposed to be," by which he meant, "[W]hat are you doing here?" (A 236-37). Then he realized the man was appellant, whom he had seen from a distance of 20 to 30 feet on a number of occasions and whom he identified in court (A 228-29, 280).2 Brown-Gordon said, "Trevor" and appellant responded, "Yes, I'm Trevor" (A 237).3 Their verbal exchange took "[a] couple of seconds," "[m]aybe ... 10 seconds," and the street was lit well enough for Brown-Gordon to see "clearly" (A 237-38). Appellant, who was about 6 or 7 feet away, fired at Brown-Gordon four or five times (A 240). After one or two shots, Brown-Gordon tried to tum and run, and the shooter fired twice more before running toward Pine Street and turning the comer (A 240-42, 246). 2 Brown-Gordon testified that he had seen appellant more than eight or 10 times (A 228), but also "[ o ]n a daily basis" (A 280). Perez testified that Brown-Gordon had seen appellant two or three times (A 180), but also "many times" (A 160). 3 Brown-Gordon was impeached with his prior written statement to the police and grand jury testimony that appellant simply said "yo" before firing (A 268-70). 13 Brown-Gordon's father, Willermo Gordon, was watching TV in the house next door when he heard Brown-Gordon calling Perez's name outside (A 40-41). Through the window, Gordon saw Perez walking quickly down the street and turning the corner onto Pine Street, with Brown-Gordon following her (A 41, 58). Suddenly, a black man in a black hoodie, whose face Gordon could not see, appeared out of "nowhere" and immediately began firing at Brown-Gordon (A 41-45, 59). Gordon, who heard five gunshots, ran out of the house, grabbed Brown-Gordon, and asked who had shot him (A 45-47 [Gordon]; A 246-47 [Brown-Gordon]). Brown-Gordon said "Trevor" (A 47 [Gordon]; A 247 [Brown-Gordon]). Perez heard gunshots but did not look back to see who was shooting (A 115).4 Turning onto Pine Street, she saw a "black cab" (A 116-17). Suddenly, appellant appeared and "pushed" her into the cab (A 116-17, 132, 165-67). "[S]till drunk," she asked why he shot her boyfriend, and he said, "I didn't shoot anybody" while "putting [his] right hand to the side of [his] waist" (A 116-18). When the car stopped after a five to ten minute ride, appellant said, "Don't say anything" before they went to their respective 4 Perez initially testified that she did not hear the person she passed on the street say anything before the gunshots began (A 114), but claimed on cross-examination that she heard Brown-Gordon ask, "Who are you supposed to be," and the man respond, "Trevor" (A 156-57). 14 houses (A 118-19, 168-71 ). Perez told her family that her boyfriend had been shot and her sister called 911 (A 120, 124 [Perez]; A 185-91 [Damaris Morales]). Appellant was not at his home on Hendrix Street when the police knocked on his door at 8:30 a.m. and 1:20 p.m. that day (A 295-97 [Detective Michael Narsingh]). He was taken into custody on March 23, 2010, over a week later, and was subsequently picked out of a lineup by Brown-Gordon (A 218 [Detective Anthony Davila]; A 250-51 [Brown- Gordon]; A 298-300 [Narsingh]). Although Brown-Gordon testified that he had been shot twice in his "stomach" and twice in his back, for a total of four shots (A 242), the EMT and police officer who responded to the scene testified that he had only been shot twice (A 29-31 [EMT Luis Cabrera]; A 78 [Officer Patrick Scala]). The EMT testified that there were only two "gunshot wounds" and that the two additional wounds were exit wounds (A 29-31 ). Brown-Gordon's medical records stated that he had been shot twice (A 593-94). According to one report, Brown-Gordon's "Chief Complaint" was "SHOT TWICE" (A 593). That report stated that there were "two ... gunshot wounds" and "two exit wounds" (A 594). Brown-Gordon's discharge summary stated, "Patient was brought in by EMS . . . with 15 multiple gun shot wounds to the abdomen," and "Physical findings = Abdomen with penetrating wounds . . . back with exit bullet wounds" (A 572). A "Report of Operation" referred to "penetrating wounds to the abdomen and back," but did not identify the wounds as entrance or exit wounds (A 637). A "Nutritional Assessment" reported that Brown-Gordon had been admitted with "Multiple Gun Shots to the stomach" (A 652). Finally, a "Progress Record" noted that there were two "Penetrating wounds" on appellant's abdomen, and two on his back (A 740). Photographs of his wounds were also admitted into evidence (A 480-83). The People did not present any expert medical testimony regarding Brown- Gordon's injuries. Outside of the presence of the jury, the court made the following record regarding Brown-Gordon's wounds: I have the hospital records in front of me ... And it does appear to me . . . that there are references to exit wounds. Now, far be it from me to be an expert in interpreting hospital records, but I just put some little paper notation stickers on where it either refers to exit wounds or just refers to multiple gunshots of the abdomen. And I raise the question, maybe it's clear to both of you that . . . there were shots in the back, not just through the back from the front. 16 But one could look at the records and make a case for two entrance wounds and two exit wounds. Doesn't mean there weren't four or five or more shots. And I just thought you might want the benefit of my looking at that and commenting on it (A 283-84). The Defense Case Appellant did not testify, and the defense rested without calling any witnesses (A 336). The Defense Summation Defense counsel argued in summation that the People's witnesses were not reliable and that the People had failed to prove beyond a reasonable doubt that appellant was the shooter (A 337-68). The Prosecutor's Summation and PowerPoint Presentation At a bench conference during the People's case, defense counsel stated that he "kn[ e ]w" that the People would use "a PowerPoint presentation" during summation and that it would be "a force to be reckoned with" (A 289). Before beginning his summation, the prosecutor told the court that "[ e ]verything" would be "set up" shortly (A 369). At the outset of his summation, after greeting the jury, he immediately requested that the 17 lights be dimmed (A 369). The prosecutor then began an 80-slide PowerPoint presentation (A 370).5 The first slide showed appellant's arrest photo, admitted as People's Exhibit 19 (A 488). The next slide read, "Issue to be decided: Did defendant attempt to kill Erick Brown-Gordon on March 14, 201 0? Yes" (A 490). The prosecutor said, "[T]he only issue you have to decide is did the defendant try to kill Erick Brown-Gordon? And the answer based on the credible evidence is yes" (A 371). After displaying a slide stating that the jury's role was to "[e]valuate evidence and witnesses" (A 491), the prosecutor displayed 52 consecutive slides that addressed the credibility of the People's witnesses (A 492-544). One of these slides read, Evaluating the witnesses: Demeanor: how did the People's witnesses act on the stand? Polite Answered defense same as prosecution Direct answers to all questions Proper body language (A 495). While this slide was displayed, the prosecutor told the jury that the People's witnesses had "answered everybody the same" and had provided "direct answers, to all of the questions" (A 375). He added that the witnesses 5 The first and third slides in the presentation were blank (A 487, 489). 18 "weren't ... evasive with counsel," but simply "came in and told you what happened to them" (A 375). The prosecutor asserted that "none of' the People's witnesses "star[ed] down at their feet" and that "[t]hey had proper body language" (A 375-76). The next slide read, Evaluating the witnesses: Bias/Hostility: anything in way People's witnesses testified show a bias to one side? Calm No hostility No attitude (A 496). While displaying this slide, the prosecutor said, "Not one witness lost his cool or her cool. Everybody was calm. . . . So, when you are trying to figure out ... were they credible, use this. They passed this test (A 376; emphasis added). Another slide stated that the People's witnesses had "[g]ood recall" and that they "[a]nswered clearly and directly" (A 500). When the prosecutor displayed a slide that read: "No material difference in testimony [of the People's witnesses] from previous statements" (A 503), defense counsel objected "to this being on the screen, no material difference in testimony from previous statements" (A 380). The court overruled the objection, stating that it was "an expression of the 19 [prosecutor's] argument" (A 380). This was counsel's only objection to the contents of the PowerPoint presentation. The next group of slides was subtitled, "Corroboration: is the testimony supported by physical evidence?" (A 504-17). The prosecutor told the jury that Brown-Gordon's description of the area where the shooting took place as "well-lit" was "corroborat[ ed]" by photographs of the scene, introduced as People's Exhibit 8 (A 478) and People's Exhibit 12 (A 479), that showed a streetlight nearby (A 382). The prosecutor displayed PowerPoint slides depicting altered versions of these exhibits: a circle had been drawn around a streetlamp on both of them, and a label identifying a specific address had also been inserted onto one of them (A 505-06). Next, the prosecutor told the jury that "[t]he three shell casings" were found "under the light," "[r]ight where" Brown-Gordon had said he was shot (A 383). He displayed another altered version of People's Exhibit 8: a circle had been inserted on part of the street, and the label "Shell casings" had been added underneath it (A 508). (It is not possible to see any shell casings inside the circle on the slide (A 508).) The prosecutor told the jury that "phone records" corroborated Perez's testimony that she "le[ft] the house" after appellant said he was "outside" (A 383, 509). Then, telling the jurors that he would "break ... down" the 20 phone records for them, he displayed four PowerPoint slides (A 383, 510- 13 ). The first slide (A 51 0) was an unaltered version of one page of an exhibit (A 741) that listed call details of 38 phone calls to or from Perez's cell phone. The next three slides were altered versions of that page (A 511- 13). On one slide, the prosecutor had redacted all but one phone call (number eight) and added the label, "12:44am: Diana calls defendant's landline" (A 511 ). On another, he had redacted all but phone call number 11 and added the caption, "12:50am: Diana calls defendant's landline" (A 512). On the third, he had redacted all but calls 13 and 14 and added two labels: "1:02am- defendant calls Diana from cell," and "1:09am- defendant calls Diana from cell" (A 513). Next, the prosecutor told the jury that Brown-Gordon's medical records proved that he had been shot four times (A 384). The prosecutor displayed an altered version of the last page of Brown-Gordon's medical records. The unaltered exhibit contained handwritten notes that included a sketch of two "wounds" on Brown-Gordon's abdomen and two ''wounds" on his back without identifying them as entrance or exit wounds (A 740). In the altered version of the exhibit, the prosecutor had significantly enlarged the sketch and added the labels "Two Gun Shot Wounds to front" and "Two 21 Gun Shot Wounds to back" (A 515). He told the jurors, "You have two gunshots to the front ... , and you have two to the back" (A 384). After a group of slides listing "12 examples" of "testimony" that was "supported by other testimony" (A 518-29), the prosecutor displayed a series of slides touting the reliability of the People's case. The first slide read: The second read: Evaluating the witnesses Corroboration: is the testimony supported by other evidence? Yes Evidence is Reliable (A 530). Evaluating the witnesses Plausible: did what the People's witnesses say have the ring of truth? YES Defendant shot Erick Brown-Gordon (A 531 ). The next set of slides continued the "credible evidence" theme (A 533-44). The first three slides in this group read, "What is the credible evidence?," followed by lists of the prosecution witnesses and exhibits (A 533-35). Then, taking each witness in turn, the prosecutor displayed slides reading, "Credible evidence[:] Erick Brown-Gordon," "Credible evidence[:] Diana Perez," and "Credible evidence[:] William Gordon," 22 followed by bullet-point breakdowns of each witness's testimony (A 536- 44). Each slide was accompanied by related oral remarks (A 393-96). Some of the slides in this portion of the presentation were altered versions of trial exhibits. On four of them, the prosecutor's summaries of a witness's testimony had been inserted on top of a photographic trial exhibit (A 537-38, 541, 544). On one of these four, the prosecutor had also inserted a circle around a window depicted in the photograph (A 544). On another, a lineup photo (A 485), a circle had been drawn around appellant (A 539). Another slide contained a map that had been introduced into evidence (A 477), on which the prosecutor had inserted an "X" identifying "Deft's home" and listing a specific address, another identifying "Erick's home" and listing another address, and a caption below the map reading, "Det. Narsingh: 2-5 minute ride" (A 542). The next slide was a horizontal timeline listing seven events chronologically, from left to right, across the page (A 545). The prosecutor told the jurors that the slide was being displayed "so you get it clear in terms of chronology based on the evidence" (A 396). Each of the events was marked by a vertical line (A 545). At the top of each vertical line was a description of an event, and at the bottom was the time at which that event allegedly occurred (A 545). 23 The physical spacing between the vertical lines for the events bore no relationship to the actual time lapse between the specified events. For example, the two minutes between "Defendant exchanges words, shoots E. Brown-Gordon," at "1:1Oam" and "E. Brown-Gordon tells father 'Trevor shot me"' at "1:12am" were separated by more than one and a quarter inches, but the 39 minutes between "Demaris Morales calls 911" at "1 :21 am" and "W. Gordon: shooter was 'Trevor"' at "2:OOam" were separated by only one inch (A 545). The spacing between other specified events also bore no relation to the time that the slide stated had elapsed between them (A 545). Then the prosecutor displayed a slide stating, "The wicked flee when no man pursues, but the righteous stand steadfast as a lion" (A 546), a statement he also made orally (A 397), followed by a slide summarizing the police efforts to locate appellant at his home on the day of the incident and his subsequent apprehension on March 23, 2010 (A 547-48). Next, the prosecutor addressed the "charges to be submitted" (A 399, 549). After stating that the court was "always the source of the law," the prosecutor displayed a slide listing only "Intent: conscious objective or purpose" under "Attempted Murder 2" (A 399, 550). The prosecutor stated that intent means "conscious aim or objective" and "done on purpose" 24 (A 400). In oral remarks and in text on a PowerPoint slide, the prosecutor cited Detective Valenti's testimony regarding "four deliberate things that you have to do to make a gun ready to be fired" as "intentional acts that [appellant] did" before the shooting (A 401, 553). In slides and oral remarks, the prosecutor summarized appellant's other purported actions "before," "during," and "after" the crime (A 402-04, 554-60). One of these slides read, Apply the law to the credible evidence: Intended to kill: Weapon used: .45 caliber handgun Distance: less than 8 feet Number of shots: at least 4 bullets Area struck: victim's torso Result: Victim shot twice in front and shot twice in back (A 558). Another slide in this section read, Apply the law to the credible evidence: Defendant shot victim on purpose Intended to kill Erick Brown-Gordon Did everything possible to kill his victim (A 557). Two slides in this group were altered trial exhibits (A 559-60). One was another copy of the last page of Brown-Gordon's medical records (A 740), which the prosecutor had altered by enlarging a sketch and certain related text and inserting the numbers "1 " "2 " "3 " and "4" next to Brown-' ' ' 25 Gordon's wounds (A 559).6 The prosecutor referred to this slide while arguing that appellant "didn't shoot [Brown-Gordon] just once, he shot him four times" (A 404). The other slide depicted four photographs of Brown- Gordon's wounds; the prosecutor had inserted circles around all of the wounds and a label reading "Surgical scar," with an arrow, onto two of the photographs (A 480-83 [exhibit]; A 560 [PowerPoint slide]). Concluding his arguments, the prosecutor displayed slides repeatedly stating that the "[c]redible [e]vidence" had proven appellant's guilt on both counts (A 561, 563-65). The final slide in the presentation was an altered versiOn of appellant's arrest photo on which the prosecutor had drawn a circle around appellant's face and inserted numerous text boxes around the circle (A 484 [exhibit]; A 566 [PowerPoint slide]). The text boxes pointed to appellant's face, as if he were a target. The text in each box contained a characterization of the trial evidence. One, for example, said, "Lay in wait for Erick Brown- Gordon with .45 cal handgun," and another stated, "Fired .45 handgun twice from less than 8 feet away" (A 566). While displaying this slide, the 6 The numbers inserted by the prosecutor are most clearly visible on the CD of the Power Point presentation, copies of which have been provided to the Court. 26 prosecutor said, "This was the face of death on March 14, 2010" (A 406). Defense counsel's general objection was overruled (A 406). Overall, during a summation that occupied 38 pages of trial transcript, the prosecutor displayed 80 PowerPoint slides to the jury (A 370-408, 487- 566). Deliberations and Verdict The jury considered attempted murder in the second degree and criminal possession of a weapon in the second degree (intent to use) (A 429- 33). During its first day of deliberations, the jury asked to rehear all of Perez's testimony, as well as Brown-Gordon's testimony about the shooting (A 443, 448). On its second day of deliberations, the jury asked for and received the definition of intent (A 458-60). The jury found appellant guilty of both attempted murder and weapon possession (A 461 ). After the jury rendered its verdict, defense counsel requested that a copy of the prosecutor's Power Point presentation be included in the "[ c ]ourt file for appeal" because "some of [the defense's] objections were based on what was up there, what was being repeated with some of the images" (A 466). The court granted the request (A 466-67). 27 Defense Counsel's Post-Verdict Remarks About the Medical Records Before appellant was sentenced, defense counsel stated that, m response to the court's previous "inquir[y] on the record about ... the medical records," counsel had "sen[t] the medical records" and "corresponding testimony" to a "doctor" "over the break" (A 468-69). According to counsel, "this morning" the doctor had told him that "there are four holes in the ... body" and that "[ o ]ne way to get there is two shots, two entrance, two exits, that is the simple math," but that the "math" was "skewed" because the medical records "reflect[ ed]" that "a bullet fragment" or "a bullet" was "still lodged" or had been "removed" from the complainant (A 469). Then counsel asserted: . . . [T]he testimony by the complainant suggests a certain tailoring of gunshots to wounds, four gunshots, four wounds, and this is inaccurate. I don't know if this amounts to any misconduct, deliberate, by misleading ... the jury. I don't have the closing argument by the prosecution, but ... this complainant wasn't shot four times[.] ... And there was a strong hint of that in the prosecution's closing. I remember objecting a few times. None of the objections were sustained. But four bullets did not hit the complaining witness, that is for sure (A 469-70). 28 The Appeal On appeal to the Second Department, appellant argued, inter alia, that he was denied due process and a fair trial by the Sandoval ruling and the prosecutor's improper PowerPoint presentation. The Second Department affirmed appellant's conviction. It held that the trial court had improvidently exercised its discretion in its Sandoval ruling because "the fact that the defendant had possessed guns on a prior occasion had little bearing on his credibility" (A 3). With no discussion, however, it held that "the error was harmless" and "did not deprive [appellant] of a fair trial" (A 3). Apparently referring to appellant's PowerPoint argument, the court held that his "contention" regarding "the prosecutor's improper remarks during summation" was unpreserved for appellate review and, in any event, that the challenged "remarks" did not deprive him of a fair trial (A 3). On February 25, 2016, the Honorable Eugene F. Pigott, Jr., granted appellant leave to appeal (A 1). 29 ARGUMENT POINT I THE TRIAL COURT'S SANDOVAL ERROR WAS NOT HARMLESS BECAUSE APPELLANT COULD HAVE PROVIDED TESTIMONY, SUCH AS THAT HE SHOT THE COMPLAINANT BUT DID NOT INTEND TO KILL HIM, THAT, IF BELIEVED, WOULD HAVE RESULTED IN HIS ACQUITTAL. Before his trial in this attempted murder case involving the use of a gun, the court ruled that, if appellant were to testify, the prosecutor could elicit that he had previously "possess[ ed]" two guns (A 21 ). Appellant, who had been the first person named on the defense's witness list, did not testify. On its second day of deliberations, after requesting the definition of"intent," the jury convicted appellant of attempted second-degree murder and second- degree criminal possession of a weapon. Although the Appellate Division, Second Department, correctly held that the Sandoval ruling was improper, it erroneously concluded that the error was harmless. The trial court's ruling deprived appellant of his due process right to a fair trial because he could have otherwise provided testimony that, if believed, would have affected the jury's verdict. Accordingly, the Appellate Division's decision should be reversed. U.S. Const., Amend. XIV; N.Y. Const., Art. I,§ 6. 30 In People v. Sandoval, 34 N.Y.2d 371, 375 (1974), this Court held that a trial court may "make an advance ruling" regarding the prosecutor's "use of prior convictions" or "proof of the prior commission of specific criminal, vicious or immoral acts" to "impeach[] a defendant's credibility." The Court emphasized that "an important consideration" in such determinations may be the effect on the validity of the fact-finding process if the defendant does not testify out of fear of the impact of the impeachment testimony for reasons other than its direct effect on his credibility - as where the defendant would be the only available source of material testimony in support of his defense. 34 N.Y.2d at 378; see also People v. Dickman, 42 N.Y.2d 294, 298 (1977) (reversing trial court's Sandoval ruling partly because defendant was the only source of material testimony in his defense). Unless objected to on constitutional grounds, Sandoval errors are harmless if "the proof of guilt was overwhelming and there was no significant probability that the jury would have acquitted had the error not occurred." People v. Grant, 7 N.Y.3d 421, 423 (2006) (citing People v. Crimmins, 36 N.Y.2d 230, 241-42 (1975)). If the defendant does not testify after a Sandoval ruling that is subsequently held to have been error, however, the harmless error analysis '"does not involve speculation as to 31 whether [the] defendant would have testified if the legal error had not occurred."' Grant, 7 N.Y.3d at 425 (quoting People v. Williams, 56 N.Y.2d 236, 240 (1982); emphasis added). Instead, it "assum[ es] that he [would] testify." Grant, 7 N.Y.3d at 425. Accordingly, as Judge Pigott has phrased it, such an error is hannless only if "the case against defendant . . . [is] overwhelming and . . . there is no significant probability that something he could have said in his defense would have resulted in acquittal[.]" People v. Smith, 18 N.Y.3d 588, 599 (2012) (concurring opinion; emphasis added). Here, the error was not hannless because the People's case was not overwhelming on the critical element of intent, and there was testimony that appellant could have provided that, if believed, would have led to his acquittal. Although the shooter fired multiple shots from relatively close range, all of the shots that hit Brown-Gordon, who survived, struck him below the chest. Notably, although nothing prevented the shooter from moving in to deliver a final shot that would have clearly demonstrated his intent to kill, he did not do so. Furthermore, even though Brown-Gordon and Perez both testified that the shooter briefly exchanged words with Brown-Gordon before firing at him, there was no evidence that the shooter threatened to kill Brown-Gordon or said anything to indicate such an intent. 32 Moreover, the iYrY was not overwhelmed by the People's case. Appellant's first trial resulted in a hung jury after eight days of deliberations, and the jury at his second trial deliberated over the course of two days before reaching a verdict in this case. To be clear: even though Brown-Gordon and Perez testified that the shooter literally identified himself by name before firing multiple gunshots at Brown-Gordon, the jury did not render a verdict on its first day of deliberations. Whether it was Perez's extreme intoxication, the fleeting nature of the incident, or the scant evidence of the shooter's intent, something about the People's case left the jurors at appellant's second trial - like those at his first trial - less than completely convinced of his guilt. Notably, during its deliberations, the jury asked for the definition of "intent." Since the evidence was not overwhelming on a key element of the crime, this case resembles People v. Williams, 56 N.Y.2d 236 (1982), in which this Court held that a Sandoval error was not harmless. In Williams, a robbery case, the trial court's Sandoval ruling permitted the prosecutor to cross-examine the defendant, if he testified, regarding 20 prior convictions and the underlying facts of two additional prior convictions. Id. at 238. At trial, the complainant testified that the defendant and another man accosted her on the street and that the defendant "told her he had a gun" before they 33 took her money and jewelry and forced her to buy them a television. Id. Two police officers testified that the defendant admitted taking the property, but said that he had done so "by tricking her" and "had not used a weapon." Id. The defendant did not testify. ld. The Appellate Division affirmed the conviction, finding that the trial court had failed to exercise any discretion in its Sandoval ruling, but that the error was harmless. ld. Holding that the Appellate Division's "determination of harmlessness was incorrect," this Court reversed the conviction. Williams, 56 N.Y.2d at 240. Emphasizing that, "[o]n the crucial issue" of whether the defendant "robbed the complainant or merely 'conned' her," the "only evidence" was the complainant's testimony that the defendant had said he had a gun, the Court concluded that the evidence of guilt was "far from overwhelming" and reversed the conviction. Id. at 240- 41. Here, not only was the People's case far from overwhelming on the element of intent, but appellant, who had no prior convictions with which to be impeached, could have presented an alternative version of events that, if credited by the jury, would have resulted in an acquittal. For example, he could have admitted shooting Brown-Gordon, but testified that he intended only to injure him. See People v. Sullivan, 68 N.Y.2d 495, 502 (1986) 34 (second-degree murder requires a "finding of a specific design to effect death -- not merely an intent to shoot"). Indeed, a defendant's testimony providing information regarding his mens rea can have a critical impact on his jury even if the People's case includes a compelling prima facie case of intent to kill. See People v. Heatley, 116 A.D.3d 23 (4th Dept. 2014) (defendant's second-degree murder conviction was against the weight of the evidence despite "undisputed" evidence that he stabbed decedent eight times with two knives, including one "immediately life-threatening" wound that "penetrat[ed]" the decedent's heart, when defendant testified that he did not intend to kill the decedent); People v. Sanchez, 98 N.Y.2d 373, 376 (2002) (defendant acquitted of intentional murder even though prosecution witness testified that she saw him "abruptly turn around, fire a gun pointed at [the decedent's] chest and flee," when he testified that the decedent "pulled a gun, they grappled for it and it accidentally discharged into [the decedent's] chest"), overruled on other grounds by People v. Feingold, 7 N.Y.3d 288 (2006). Alternatively, appellant could have testified that he intended to frighten Brown-Gordon by firing the gun near, but not at, him. Or appellant could have testified to facts supporting a justification defense by describing a scenario in which he approached Brown-Gordon to confront him verbally 35 about his relationship with Perez, noticed Brown-Gordon do something that led him to believe Brown-Gordon was about to use deadly force against him, and fired in self-defense. 7 Notably, such testimony could demonstrate that appellant did not possess the requisite intent to kill even if it did not establish that the shooting was legally justified. See People v. ~' 7 N.Y.3d 277, 280-83 (2006) (defendant who shot decedent in neck was acquitted of second-degree murder after testifying that he fired gun because he felt his life was in danger, even though jury rejected his justification defense and convicted him of first-degree manslaughter). The court's error in this case, which discouraged appellant from testifying in his own defense, was particularly damaging because he was the "only available source of material testimony in support of his defense." Sandoval, 34 N.Y.2d at 378; see also Dickman, 42 N.Y.2d at 298. Assuming, arguendo, that appellant was the man who shot Brown-Gordon, only he could have offered testimony regarding his actual intent at the time of the incident. 7 Testifying to any of these scenarios would have exposed appellant to impeachment with his grand jury testimony that he "wasn't there" (A 11), but it is impossible to know how, if at all, that prior inconsistent statement would have affected the jury's assessment of his credibility. Significantly, however, the credibility of appellant's trial testimony would have been enhanced by the fact that it acknowledged a greater degree of responsibility than did his prior testimony. 36 Appellant's case is readily distinguishable from cases in which a Sandoval error has been found to be harmless because it was simply not possible to conceive of any testimony the defendant could possibly have provided that would have resulted in an acquittal. In People v. Grant, 7 N.Y.3d 421, 423 (2006), for example, the defendant was charged with first- degree criminal contempt for allegedly harassing his ex-wife and their children in violation of an order of protection. Id. The trial court ruled that, if the defendant testified, he could be impeached regarding all six of his prior convictions for criminal contempt. ld. The defendant did not testify and was convicted of the charge. ld. at 423. The Appellate Division held that the court's Sandoval ruling was improper, but that the error was harmless. ld. This Court affirmed. Grant, 7 N.Y.3d at 425. Observing that "the only conceivable issue for the jury to resolve was whether defendant in fact went to his family's home" on a certain day, but that the defendant's ex-wife and two of their teenaged children testified that he visited their home three times that day, the Court held that the error was harmless because "there [was] nothing to which [the defendant] could legitimately have testified that might have been believed by the jury." Id. at 424-25 (emphasis added). Critically, in reaching this conclusion, the Court emphasized that the 37 defendant's "knowledge of the terms of the order of protection was not in dispute at trial." Id. at 425. Here, in stark contrast to Grant, appellant's ~rea was very much "in dispute" at appellant's trial. Grant, 7 N.Y.3d at 425. Notably, the prosecutor devoted a significant portion of his summation to the element of intent (A 400-04, 550-58), and the jury asked for the definition of "intent" during deliberations. 8 For the same reason, appellant's case does not even remotely resemble the numerous Appellate Division cases in which a Sandoval error was held to be harmless because neither the defendant's identity or any other element of the crime could plausibly have been disputed. See, ~' People v. Davis, 72 A.D.3d 1274, 1275 (3d Dept. 2010) (any Sandoval error was harmless in statutory rape case when 26-year-old defendant admitted having sexual intercourse with a 15-year-old girl); People v. Singleton, 66 A.D.3d 1444, 1445 (4th Dept. 2009) (same, for failing to register as a sex offender); People v. Boodrow, 42 A.D.3d 582, 583-84 (3d Dept. 2007) (same, for 8 Since the element of intent was a "conceivable issue for the jury to resolve" in appellant's case, and he would obviously have been able to provide the jury with valuable information on this issue, it was not necessary for him to have made "some minimal proffer as to the nature or existence of a defense." Cf. Grant, 7 N.Y.3d at 425 (noting, in holding that Sandoval error was harmless, that defendant had "profer[red] no hint that he actually had any creditable defense, and offer[red] no suggestion as to what it might have been"). 38 criminal possession of stolen property in the fourth degree when defendant was found in possession of stolen debit card); People v. Siriani, 27 A.D.3d 670, 670 (2d Dept. 2006) (same, for burglary in the second degree when defendant's fingerprint was on jewelry box inside burglarized apartment and he possessed stolen jewelry); People v. Rodriguez, 268 A.D.2d 446, 446-47 (2d Dept. 2000) (same, for criminal possession and sale of controlled substance when defendant was found with prerecorded "buy" money and packages of cocaine immediately after sale to undercover officer). Unlike most other trial errors, a Sandoval error resulting m a defendant's decision not to testify at trial deprives the jury of information that is potentially critical to its determination of the defendant's guilt or innocence. For this reason, when this Court first explicitly held that such errors are subject to harmless-error analysis, Judge Smith wrote in dissent, "I cannot accept the proposition that an error that prevented a defendant from telling his side of the story to a jury can ever be 'harmless."' Grant, 7 N.Y.3d at 426 (emphasis added). Here, there was crucial testimony that only appellant could have offered regarding his intent at the time of this non- fatal shooting. Accordingly, the trial court's erroneous Sandoval error was not harmless, and appellant's conviction should be reversed and a new trial ordered. 39 POINT II DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT WHEN, DURING THE PROSECUTOR'S SUMMATION, HE DISPLAYED AN 80-SLIDE POWERPOINT PRESENTATION THAT CONTAINED NUMEROUS ALTERED TRIAL EXIDBITS, INCLUDING A VERSION OF APPELLANT'S ARREST PHOTO ONTO WHICH PREJUDICIAL TEXT HAD BEEN INSERTED; A MISLEADING TIMELINE OF EVENTS; AND SLIDES CONVEYING THE PROSECUTOR'S OWN ASSESSMENTS OF THE DEMEANOR AND CREDIBILITY OF THE PEOPLE'S WITNESSES. Before summations, defense counsel referred to the prosecutor's PowerPoint presentation as "a force to be reckoned with," but he did not object to its content (A 289). The 80-slide presentation contained an altered version of appellant's arrest photo and slides misrepresenting the meaning of the complainant's medical records, a misleading timeline of events, and slides displaying the prosecutor's characterizations of the "[ d]emeanor" and "body language" of the People's witnesses (A 495). Defense counsel objected to only one of the slides. Because of the prosecutor's misconduct and defense counsel's repeated lapses, appellant received neither the effective assistance of counsel nor a fair trial. See U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, § 6. 40 Under the federal standard, a reversal is required due to ineffective assistance of trial counsel if counsel's performance fell below "an objective standard of reasonableness" and resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); Hawthorne v. Schneiderman, 695 F.3d 192, 195-96 (2d Cir. 2012). In New York, a defendant is denied effective assistance when, "viewed in totality," all of the circumstances show that the attorney did not provide "meaningful representation." People v. Benevento, 91 N.Y.2d 708, 712 (1998); People v. Baldi, 54 N.Y.2d 137, 146 (1981). This Court recently emphasized that defense counsel's failure to object to improper summation arguments can, in and of itself, constitute ineffective assistance of counsel. People v. Wright, 25 N.Y.3d 769, 770-71 (20 15). In Wright, defense counsel's only error was his "fail[ ure] to object, time and again, when the prosecutor misrepresented to the jury critical DNA evidence as proof of defendant's guilt." Id. at 771. This Court reversed the conviction, holding that a defendant is deprived of meaningful representation and a fair trial when counsel fails to object when faced with a pattern of prosecutorial misstatements far afield from acceptable argument, such as statements that misrepresent evidence central to the determination 41 Id. at 780. of guilt, and where there is no apparent strategic explanation for defense counsel's silence[.] Here, the prosecutor's sprawling, 80-slide PowerPoint presentation, which dominated his summation, was rife with blatant improprieties. First, the presentation improperly displayed to the jury numerous altered versions of trial exhibits. Appellate courts throughout the country, including the highest courts in a number of states, have held that it is error to include altered evidence in PowerPoint slides. In State v. Walker, 182 Wash.2d 463, 478, 489 (Wash. 2015), for example, the Supreme Court of Washington held that "altering evidence on PowerPoint slides constitutes misconduct," and added that "[ c ]losing argument . . . does not give a prosecutor the right to present altered versions of admitted evidence to support the State's theory of the case[.]" See also In re Glasmann, 175 Wash.2d 696, 706 (Wash. 2012) (misconduct included prosecutor's PowerPoint presentation, which contained altered trial exhibits; prosecutor's "modification of photographs by adding captions was the equivalent of unadmitted evidence"); State v. Kemble, 291 Kan. 109, 121, 124 (Kan. 2010) (misconduct included improper PowerPoint slide); Brown v. State, 18 So.3d 1149, 1151 (Fla. Dist. Ct. App. 2009) (prosecutor's rebuttal argument improper because it 42 "summarized, in a detailed PowerPoint presentation, the testimony of each witness, what was shown in the surveillance tape, and the elements of each crime for which [defendant] was charged," and "contained references to evidence that was never admitted at trial"). Indeed, the very prosecutor who tried this case recently wrote in a trade publication, Simply put, documents, photographs or other materials that have not been received in evidence cannot be displayed to a jury in summation. That bright-line rule of evidence does not change when PowerPoint is used to display evidence in summation. Kyle C. Reeves, POWERPOINT IN COURT: The Devil's Own Device, or A Potent Prosecution Tool?, Prosecutor, Oct-Nov-Dec 2014 26, at 33 (emphasis added). The prosecutor warned that "Power Point can quickly become the noose that prosecutors put around their own necks, . . . by . . . showing the jury things that were not properly received in evidence." I d. at 27; see also Kemble, 291 Kan. at 124 (in reversing conviction because of, inter alia, improper PowerPoint slide, observing that, unlike "a spur-of-the- moment comment delivered extemporaneously," "the constitutional violation" in using the slide "could have easily [been] avoided" with "[s]ome forethought during trial preparation"). 43 Most egregiously, the last slide in the PowerPoint presentation displayed a dramatically altered version of appellant's arrest photo (A 484 [exhibit]; A 566 [PowerPoint slide]). The prosecutor had altered the exhibit, a proper version of which had been the first slide in the presentation, by drawing a circle around appellant's face and inserting, around it, numerous text boxes (A 566). The text boxes, which were pointed at appellant's face if he were a target, contained characterizations of the trial evidence like, "Lay in wait for Erick Brown-Gordon with .45 cal handgun" and "Fired .45 handgun twice from less than 8 feet away" (A 566). Although counsel voiced a general objection to the prosecutor's related comment that the image showed "the face of death on March 14, 2010" (A 406), he inexplicably failed to object to the slide itself. Numerous appellate courts in other jurisdictions have held that it was reversible error to include an altered version of the defendant's arrest photo a PowerPoint presentation. The highest court in Nevada, for example, reversed a conviction because of a PowerPoint slide extremely similar to this one. In Watters v. State, 313 P.3d 243, 247 (Nev. 2013), the Supreme Court of Nevada reversed a conviction because a prosecutor's PowerPoint presentation "displayed [defendant's] booking photograph with a pop-up" that labeled him "GUlL TY." Although the prosecutor had orally told the 44 jury "she would be asking the jurors to find [defendant] guilty," the court held that "[t]hese [were] not just two different ways of saying the same thing" when "the PowerPoint slide directly declared [defendant] guilty." ld. at 247-48; see also State v. Reineke, 266 Or.App. 299, 303, 311 (Or. Ct. App. 2014) (reversing conviction because of prejudicial PowerPoint presentation, which included a photograph of the defendant to which the prosecutor had added the labels "GUlL TY'' and "Only he has motive"); State v. Rivera, 437 N.J. Super. 434, 447 (App. Div. 2014) (same because of, inter alia, PowerPoint presentation containing altered version of a photograph of defendant); State v. Herbin, 174 Wash. App. 1078 (Wash. App. 2013) (same because of prosecutor's improper PowerPoint presentation, which included three slides depicting the defendant's booking photograph to which the prosecutor had added labels). The prosecutor altered other exhibits to make them conform with his theory that the complainant was struck by four bullets, which was key support for his argument that the shooter possessed the requisite intent to kill. On one slide, the prosecutor added labels reading, "Two Gun Shot Wounds to front" and "Two Gun Shot Wounds to back" to a small sketch on the last page of Brown-Gordon's medical records that he had enlarged (A 740 [exhibit]; A 515 [PowerPoint slide]). A subsequent slide displayed 45 another altered version of the same trial exhibit; this time, the prosecutor had enlarged the same sketch, as well as some related text, and inserted the numbers "1," "2," "3," and "4" next to Brown-Gordon's wounds, to suggest that he had been shot four times (A 559). In fact, Brown-Gordon's medical records showed that he had been shot only twice. One report stated that Brown-Gordon's "Chief Complaint" was "SHOT TWICE" (A 593), but that there were "two ... gunshot wounds" and "two exit wounds" (A 594). His discharge summary stated, "Patient was brought in by EMS . . . with multiple gun shot wounds to the abdomen," and "Physical findings= Abdomen with penetrating wounds ... back with exit bullet wounds" (A 572; emphasis added). The medical records contained references to "penetrating wounds to the abdomen and back" (A 637, 740), but they did not identify the wounds as entrance or exit wounds. Despite the fact that the prosecutor's alterations to the medical records contradicted the records themselves, counsel did not register any objection at all.9 The prosecutor's Power Point presentation contained 13 other slides that were altered versions of trial exhibits (A 505-06, 508, 511-13, 537-39, 9 Indeed, counsel thought to have a doctor review the medical records only after the trial had concluded (A 468-70). 46 541-42, 544, 560). The prosecutor's alterations took many different forms. In some situations, he inserted text, or a circle, onto a photographic exhibit (A 505-06, 508, 537-39, 541, 544, 560). In one case, a circle with the caption "Shell casings" was added to a photograph of the scene where the incident took place, even though no shell casings can actually be seen inside the circle (A 508). Three separate slides displayed versions of one page of Perez's phone records that that been altered by removing certain information and adding labels (A 511-13). The relevant page of the exhibit actually displayed information regarding 38 phone calls to or from Perez's cell phone (A 741). But on each of three slides, the prosecutor redacted everything on the page except for the data regarding one (A 511-12) or two (A 513) of the phone calls and added a label interpreting that data, such as, "12:44am: Diana calls defendant's landline" (A 511). It was plain error for him to expose the jury to altered exhibits that had never been admitted into evidence. See People v. Bouton, 50 N.Y.2d 130, 135-37 (1980) Gury's deliberations were "contaminated" when documents that had been ruled inadmissible "found their way" into jury room during deliberations); People v. Fielding, 158 N.Y. 542, 547 (1899) (noting that "exhibit[ing] a cartoon" that was "not in evidence" was grounds for reversal even in a civil case). 47 Yet another improper PowerPoint slide depicted a misleading time line of events, created by the prosecutor, that had never been introduced into evidence. After telling the jurors that he was presenting a "clear . . . chronology" that was "based on the evidence" (A 396), the prosecutor displayed a slide containing a supposed timeline of significant events (A 545). The spacing between the vertical lines that allegedly indicated when each event on the timeline had occurred, however, bore no relationship to the actual amount of time that passed between the listed events. For example, the two minutes between two of the events were separated by over an inch and a quarter, but the 39 minutes between two other events were separated by only one inch (A 545). By presenting this misleading timeline, the prosecutor failed to remain within the four comers of the evidence during summation. See People v. Ashwal, 39 N.Y.2d 105, 109 (1976); People v. Ferguson, 82 N.Y.2d 837, 838 (1993); People v. Wright, 41 N.Y.2d 172, 175 (1976); see also People v. Carborano, 301 N.Y. 39, 42 (1950) (prosecutor may not "mislead or confuse the jury" in summation). The PowerPoint presentation was also improper because it contained numerous slides that vouched for the credibility of the People's witnesses in myriad ways. A prosecutor may not express his personal belief on matters that "may influence the jury" or "vouch[] for the credibility of the People's 48 witnesses." People v. Paperno, 54 N.Y.2d 294, 300-01 (1981); see also People v. Bailey, 58 N.Y.2d 272, 277 (1983) (improper for a prosecutor to "express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant"); People v. Lovello, 1 N.Y.2d 436, 439 (1956) (improper for prosecutor to "mak[e] himself an unsworn witness and support[] his case by his own veracity and position"). Here, the prosecutor improperly exploited his position by injecting his own opinions into the case. First, he told the jury his own opinion regarding how the witnesses had conducted themselves during their testimony (A 495- 96, 500). One of the slides displayed the question, "Demeanor: how did the People's witnesses act on the stand" (A 495). Obviously, the demeanor of the witnesses was relevant to the jury's determination regarding their credibility. But the prosecutor's slide not only posed the question, but also answered it by providing the prosecutor's personal opinion: the People's witnesses were "[p ]olite," gave "[ d]irect answers to all questions," had "[p]roper body language," and "[a]nswered defense same as prosecution" (A 495). Similarly, after informing the jury that a consideration relevant to "[e]valuating the witnesses" was whether "anything in [the] way [the] People's witnesses testified show[ed] a bias to one side," another slide flatly 49 asserted that the witnesses had testified in a "[c]alm" manner, with "[n]o hostility" and "[n]o attitude" (A 496). Yet another slide explained that the jury should consider whether the People's witnesses "recall[ed] the events accurately," but then answered the question by supplying the prosecutor's personal belief that the witnesses had "[g]ood recall" and "[a]nswered clearly and directly" (A 500). One slide expressed the prosecutor's view that "what the People's witnesses s[aid]" "ha[d] the ring of truth" (A 531), and another slide went even further, announcing, "Evidence is Reliable" (A 530). Furthermore, despite the well-settled prohibition against vouching, the prosecutor repeatedly asserted, in one slide after another, that the People's evidence constituted "Credible evidence" (A 533-35, 540, 543, 557-58, 561 ). After purporting to "evaluat[ e ]" the evidence, and deeming it all "Reliable" (A 530), the prosecutor displayed slides that asked, "What is the credible evidence?" and answered the question by listing the People's professional witnesses, the People's eyewitnesses, and the physical evidence (A 533-35). In short, the prosecutor improperly used the PowerPoint slides to vouch for every aspect of his case, but counsel did not object to any of the slides. 50 Not content with vouching for his witnesses generally, the prosecutor displayed slides that further vouched for the credibility of each of the People's eyewitnesses individually. The slides read, "Credible evidence[:] Erick Brown-Gordon," "Credible evidence[:] Diana Perez," and "Credible evidence[:] William Gordon," and provided summaries of portions of their testimony (A 536-44). In subsequent slides, the prosecutor applied the law to "the credible evidence" and informed the jury what the "credible evidence" had proven (A 557-58, 561, 563-65). Finally, the prosecutor vouched for the overall strength of his case and expressed his own belief that appellant was guilty. One slide asked if "defendant attempt[ ed] to kill Erick Brown-Gordon," and immediately declared the answer to be "Yes" (A 490), while two others flatly asserted, "Defendant shot Erick Brown-Gordon" (A 531-32). Defense counsel failed to object to any of these slides. Because the prosecutor's misrepresentations were displayed in a sophisticated visual presentation to the jury, the damage was more severe than it would have been if the prosecutor had made the arguments only orally. See In re Glasmann, 175 Wash.2d at 708-10 (making an improper argument visually is "even more prejudicial" than making it orally); People v. Santiago, 22 N.Y.3d 740, 754 (2014) (Rivera, J., dissenting) ("[T]echnology . . . serves as a powerful tool to communicate images and 51 concepts in ways that engage the jury distinctly, and perhaps more effectively, than the spoken word .... The use of technology at the end of a closing argument may be particularly powerful"); Lucille A. Jewel, Through A Glass Darkly: Using Brain Science and Visual Rhetoric to Gain A Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237, 289, 293 (2010) ("With visual information, people believe what they see and will not step back and critically examine the conclusions they reach, unless they are explicitly motivated to do so[,] [which] conflicts with a bedrock principle of our legal system - that reasoned deliberation is necessary for a fair justice system"); Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 Fordham L. Rev. 1453, 1467 (2007) ("high-tech closing arguments" are "potentially ... more prejudicial" than oral ones); Reeves, PowerPoint in Court, at 27 (when improper oral argument is "accompanied by an equally improper visual display," the "magnitude of the perceived error'' is "increased"); see also People v. Owens, 69 N.Y.2d 585, 591 (1987) (content of "written [materials] may be reinforced ... as the oral instructions fade from memory"). 52 * * * Under both the federal and state standards, counsel's persistent failure to object to the prosecutor's blatantly improper and highly prejudicial arguments constituted ineffective assistance of counsel. There could have been no possible strategic reason for counsel's failure to object to the clear improprieties in the prosecutor's PowerPoint summation. See Wright, 25 N.Y.3d at 770-71 (defense counsel ineffective for failing to object to pervasive prosecutorial misconduct in summation); cf. People v. Santiago, 22 N.Y.3d 740, 746 (2014) (impropriety of prosecutor's PowerPoint presentation "not so 'clear-cut' or 'dispositive"' that defense counsel's failure to object amounted to ineffective assistance of counsel"). Crucially, before the summations even began, defense counsel told the court that he "kn[ e ]w" that the prosecutor was going to display a PowerPoint presentation during his summation and remarked that it was "a force to be reckoned with," suggesting an awareness of its contents (A 289). Yet he raised no objection to any of the slides at the time. Furthermore, after the jury rendered its verdict, defense counsel requested that a copy of the prosecutor's PowerPoint presentation be included in the "[c]ourt file for appeal" because, he asserted after the fact, some of his "objections were based on what was up there ... with some of the images" (A 466). In fact, 53 when the presentation was actually being displayed to the jury, he objected to only one slide, and he did not make a mistrial motion. Furthermore, before the prosecutor even began his summation, counsel had been alerted to the fact that the complainant's testimony that he had been shot four times was not supported by the medical records. Indeed, the court had gone out of its way to make a record that "one could look at the [medical] records and make a case for two entrance wounds and two exit wounds," which would mean that the complainant had been struck by only two bullets (A 283-84). In post-verdict remarks before appellant's sentencing, defense counsel repeatedly asserted that "four bullets did not hit the complaining witness" and added that remarks to this effect might "amount[] to . . . misconduct" in the form of "misleading . . . the jury" (A 469-70). Yet when the prosecutor displayed the improper slides to the jury and made related remarks orally, counsel did not register any objection at all. As discussed in Point I, ante, appellant's first trial resulted in a hung jury. The jury at his second trial deliberated over two days, asking for the definition of "intent," before reaching a verdict. Clearly, the jury found the case to be a difficult one. Under these circumstances, the prosecutor's improper PowerPoint presentation prejudiced appellant dramatically. 54 Accordingly, this Court should reverse appellant's conviction and order a new trial. Dated: CONCLUSION FOR THE REASONS SET FORTH ABOVE IN POINTS I AND II, THE COURT SHOULD REVERSE APPELLANT'S CONVICTION AND ORDER A NEW TRIAL. July 13, 2016 Respectfully submitted, LYNNW.L.FAHEY Attorney for Defendant-Appellant Appellate Advocates 111 John Street, 9th Floor New York, New York 10038 (212) 693-0085 By:~rDonn Of Counsel New York, New York 55