The People, Respondent,v.Paul Cortez, Appellant.BriefN.Y.Oct 15, 2013 To be argued by DAVID M. COHN (20 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - PAUL CORTEZ, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 firstname.lastname@example.org HILARY HASSLER DAVID M. COHN ASSISTANT DISTRICT ATTORNEYS Of Counsel APRIL 8, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iv INTRODUCTION................................................................................................................ 1 THE EVIDENCE AT TRIAL The People's Case A. Defendant’s Relationship with Catherine Woods ............................................ 6 B. Catherine is brutally murdered in her apartment on the evening of November 27, 2005. Defendant’s cell phone records place him near the scene. ......................................................................................................................... 15 C. Cell site records track defendant’s return to his apartment after the murder. Defendant skips band practice and meets a friend, who recalls defendant wearing a distinctive pair of boots. Defendant discards garbage at around 4:00 a.m., and he arrives late for work on Monday morning. ..................................................................................................................... 23 D. Haughn cooperates immediately with the police investigation. ................... 25 E. Defendant’s Statement to the Police ................................................................ 26 F. A bloody fingerprint recovered from the crime scene is matched to defendant. A boot print on the bed sheets is matched to the exact type of shoe that defendant wore on the evening of the murder. ............................... 30 G. An autopsy reveals that Catherine died from multiple stab and slash wounds that severed her jugular vein and her carotid artery. .............................. 35 H. Other Crime Scene Evidence ........................................................................... 37 I. The police arrest defendant and search his home and workplace. ................ 39 The Defendant's Case A. Defendant’s Testimony ...................................................................................... 40 B. Testimony of Defendant’s Mother ................................................................... 49 -ii- C. Testimony of Defendant’s Friends and Acquaintances ................................. 50 D. Police Witnesses ................................................................................................. 53 POINT I THE TRIAL COURT PROPERLY EXERCISED ITS "BROAD DISCRETION" BY ALLOWING DEFENDANT TO PROCEED WITH THE ATTORNEYS OF HIS CHOICE .................................................. 55 A. The Relevant Record .......................................................................................... 57 B. Defendant validly waived any conflict of interest arising from Florio’s pending case. 1. The Applicable Law ................................................................................. 62 2. Argument .................................................................................................. 66 C. Contrary to defendant’s argument, even if there were some arguable deficiency in the trial court’s inquiry, automatic reversal is not required. .......... 75 D. The Appellate Division’s finding that co-counsel Florio’s conflict did not operate on the defense presents a mixed question of law and fact. Further, the Appellate Division’s finding was an appropriate exercise of discretion. ................................................................................................................... 86 POINT II DEFENDANT’S CURRENT CHALLENGES TO THE ADMISSION OF SELECTED EXCERPTS FROM HIS JOURNALS ARE PARTIALLY, IF NOT LARGELY, UNPRESERVED. FURTHER, THE TRIAL COURT’S EVIDENTIARY RULING WAS NOT AN ABUSE OF DISCRETION ............................................................... 100 A. The Relevant Record 1. The Journal Excerpts Introduced on the People’s Direct Case a. The Trial Court’s Evidentiary Ruling ....................................... 102 b. The Journal Excerpts ................................................................. 104 2. Defendant’s Trial Testimony and Character Witnesses .................... 107 -iii- 3. The Summations .................................................................................... 110 4. The Appellate Division’s Decision ...................................................... 112 B. Defendant’s journal entries about Boo and Amanda were highly relevant to his motive and state of mind. Further, defendant’s writings did not constitute impermissible “bad acts” or “propensity” evidence. .......... 114 C. Defendant has not preserved any challenge to the prosecutor’s arguments to the jury about the journal excerpts, which constituted fair comment on the evidence and a fair response to defense counsel’s arguments. ................................................................................................................ 135 D. Any error in the admission of the journal excerpts regarding Amanda and Boo was harmless. ........................................................................................... 140 CONCLUSION ................................................................................................................. 143 -iv- TABLE OF AUTHORITIES FEDERAL CASES Armienti v. United States, 234 F.3d 820 (2d Cir. 2000) ....................................................... 77 Bellamy v. Cogdell, 974 F.2d 302 (2d Cir. 1992) ............................................................. 63, 77 Boyd v. City and County of San Francisco, 576 F.3d 938 (9th Cir. 2009) ............................ 130 Briguglio v. United States, 675 F.2d 81 (3d Cir. 1982) .......................................................... 77 Campbell v. Rice, 302 F.3d 892 (9th Cir. 2002) .................................................................... 69 Campbell v. Rice, 408 F.3d 1166 (9th Cir. 2005) .................................................................. 69 Cuyler v. Sullivan, 446 U.S. 335 (1980) ..................................................................... 67-68, 84 Geders v. United States, 425 U.S. 80 (1976) ........................................................................... 85 Goins v. Lane, 787 F.2d 248 (7th Cir. 1986) ....................................................................... 76 Kimmelman v. Morrison, 477 U.S. 365 (1986) ....................................................................... 88 Mickens v. Taylor, 535 U.S. 162 (2002) ............................................................................ 83-84 O’Neal v. Delo, 44 F.3d 655 (8th Cir. 1995) ...................................................................... 118 Turpin v. Kassulke, 26 F.3d 1392 (6th Cir. 1994) .............................................................. 130 United States v. Aiello, 900 F.2d 528 (2d Cir. 1990) ............................................................ 76 United States v. Balzano, 916 F.2d 1273 (7th Cir. 1990) ..................................................... 76 United States v. Beasley, 72 F.3d 1518 (11th Cir. 1996) ..................................................... 118 United States v. Curcio, 680 F.2d 881 (2d Cir. 1982) ........................................................... 72 United States v. Cviganovich, 556 F.3d 857 (8th Cir. 2009) ................................................ 130 United States v. Foster, 939 F.2d 445 (7th Cir. 1991) ......................................................... 130 United States v. Fulton, 5 F.3d 605 (2d Cir. 1993) ............................................................... 77 United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) .......................................................... 85 -v- United States v. Herrera-Rivera, 25 F.3d 491 (7th Cir. 1994) ............................................... 89 United States v. Houston, 205 F. Supp. 2d 856 (W.D. Tenn. 2002) ................................. 130 United States v. Lowry, 971 F.2d 55 (7th Cir. 1992) ...................................................... 70, 73 United States v Perez, 325 F3d 115 (2d Cir 2003) ................................................................ 61 United States v. Salameh, 152 F.3d 88 (2d Cir. 1998)......................................................... 117 United States v. Seale, 600 F.3d 473 (5th Cir. 2010) .......................................................... 117 United States v. Shark, 51 F.3d 1072 (D.C. Cir. 1995) ........................................................ 89 United States v. Taylor, 139 F.3d 924 (D.C. Cir. 1998) ....................................................... 89 Wood v. Georgia, 450 U.S. 261 (1981) .............................................................................. 83-84 STATE CASES Contrast People v. Felder, 47 N.Y.2d 287 (1979) ................................................................... 79 Cook v. State, 45 S.W.3d 820 (Ark. 2001).......................................................................... 130 In re J.A.L., 694 N.W.2d 748 (Iowa 2005) ....................................................................... 131 Jefferds v. People, 5 Parker’s Crim. Rep. 522 (Sup. Ct., N.Y. Co., 1862) ......................... 115 Masters v. People, 58 P.3d 979 (Colo. 2002) ....................................................................... 117 People v. Abar, 99 N.Y.2d 406 (2003) ...................................................................... 77-78, 88 People v. Alas, 44 A.D.3d 534 (1st Dept. 2007) ................................................................ 127 People v. Alicea, 61 N.Y.2d 23 (1983) ................................................................................... 77 People v. Allen, 88 N.Y.2d 831 (1996) .................................................................................. 86 People v. Alvino, 71 N.Y.2d 233 (1987) .............................................................................. 123 People v. Ashwal, 39 N.Y.2d 105 (1976) ............................................................................. 137 People v. Aska, 91 N.Y.2d 979 (1998) ................................................................................ 114 People v. Baffi, 49 N.Y.2d 820 (1980) ................................................................................... 81 -vi- People v. Baldi, 54 N.Y.2d 137 (1981) .................................................................................. 87 People v. Becoats, 17 N.Y.3d 643 (2011) ................................................................................ 90 People v. Benevento, 91 N.Y.2d 708 (1998) ............................................................................ 88 People v. Berroa, 99 N.Y.2d 134 (2002) ................................................................................. 62 People v. Bradley, 20 N.Y.3d 128 (2012) ............................................................. 126, 128-130 People v. Caban 70 N.Y.2d 695 (1987) ..................................................................... 63-64, 73 People v. Carncross, 14 N.Y.3d 319 (2010) .......................................................... 63, 65, 73-74 People v. Carter, 197 A.D.2d 698 (2d Dept. 1993) ............................................................ 132 People v. Cass, 18 N.Y.3d 553 (2012) ................................................................ 125, 127, 137 People v. Chico, 90 N.Y.2d 585 (1997) ................................................................................ 134 People v. Cortez, 19 N.Y.3d 972 (2012) .................................................................................. 5 People v. Cortez, 85 A.D.3d 409 (1st Dept. 2011) .................................. 4-5, 61-62, 113-114 People v. Cousins, 181 P.3d 365 (Colo. App. 2008) ........................................................... 127 People v. Crampe, 17 N.Y.3d 469 (2011) ............................................................................... 85 People v. Cratsley, 86 N.Y.2d 81 (1995) .............................................................................. 134 People v. Crimmins, 36 N.Y.2d 230 (1975) ......................................................................... 142 People v. Crump, 53 N.Y.2d 824 (1981) ................................................................................ 81 People v. Davis, 58 N.Y.2d 1102 (1983) ............................................................................. 139 People v. Decker, 157 N.Y. 186 (1898) ............................................................... 115, 120, 128 People v. Dorm, 12 N.Y.3d 16 (2009) .................................................................................. 127 People v. Ennis, 11 N.Y.3d 403 (2008) ........................................................................... 64, 77 People v. Fitzgerald, 156 N.Y. 253 (1898) ................................................................... 123, 134 People v. Gillyard, 13 N.Y.3d 351 (2009) ............................................................................ 142 -vii- People v. Goldsberry, 630 N.E.2d 1113 (Ill. App. 1994) ..................................................... 131 People v. Gomberg, 38 N.Y.2d 307 (1975) ............................ 61, 63-65, 67, 69-70, 74, 79, 85 People v. Griffin, 224 P.3d 292 (Colo. App. 2009) ............................................................. 117 People v. Halm, 81 N.Y.2d 819 (1993) ............................................................................... 137 People v. Harris, 98 N.Y.2d 452 (2002) .............................................................................. 136 People v. Hilton, 2005 WL 1489494 (Mich. App. 2005) ................................................... 131 People v. Hoffman, 570 N.W.2d 146 (Mich. App. 1997) ........................... 116-117, 120, 130 People v. Ingram, 71 N.Y.2d 474 (1988) ...................................................................... 127, 132 People v. Jackson, 76 N.Y.2d 908 (1990) ............................................................................. 132 People v. Jackson, 8 N.Y.3d 869 (2007) ............................................................................... 126 People v. Jordan, 83 N.Y.2d 785 (1994) ............................................................................ 87-88 People v. Knowles, 88 N.Y.2d 763 (1996) .............................................................................. 85 People v. Konstantinides, 14 N.Y.3d 1 (2009) ........................................... 56, 67, 75-80, 86-87 People v. Leslie, 232 A.D.2d 94 (1st Dept. 1997) ................................................................ 79 People v. Lewis, 151 A.D.2d 784 (2d Dept. 1989) ............................................................. 116 People v. Lloyd, 51 N.Y.2d 107 (1980) ...................................................................... 64-65, 70 People v. Longtin, 92 N.Y.2d 640 (1998) ............................................................................... 62 People v. Love, 57 N.Y.2d 998 (1982) ................................................................................... 90 People v. Macerola, 47 N.Y.2d 257 (1979) ............................................................................. 81 People v. Mattison, 67 N.Y.2d 462 (1986) ............................................................................. 79 People v McDonald, 68 N.Y.2d 1 (1986) ......................................................................... 79, 82 People v. Miller, 35 N.Y.2d 65 (1974) ................................................................................. 133 People v. Molineux, 168 N.Y.2d 264 (1901) ............... 100-101, 103-104, 125-126, 130, 132 -viii- People v. Monroe, 54 N.Y.2d 35 (1981) ............................................................................ 81-82 People v. Moore, 42 N.Y.2d 421 (1977) ....................................... 115-116, 124-126, 133, 135 People v. Morgan, 66 N.Y.2d 255 (1985) ............................................................................. 142 People v. Nicolaus, 817 P.2d 893 (Cal. 1991) .............................................................. 118, 121 People v. Ortiz, 49 N.Y.2d 718 (1980) ............................................................................ 65, 74 People v. Ortiz, 76 N.Y.2d 652 (1990) ...................................................................... 77, 86-87 People v. Recupero, 73 N.Y.2d 877 (1988) ............................................................................. 82 People v. Richardson, 137 A.D.2d 105 (3d Dept. 1988) ..................................................... 126 People v. Rivera, 71 N.Y.2d 705 (1988) ................................................................................. 90 People v. Rojas, 97 N.Y.2d 32 (2001) .......................................................................... 125, 127 People v. Sanders, 127 A.D.2d 937 (3d Dept. 1987) .......................................................... 116 People v. Satterfield, 66 N.Y.2d 796 (1985) ........................................................................... 87 People v. Scarola, 71 N.Y.2d 769 (1988)...................................................................... 114, 126 People v. Segal, 54 N.Y.2d 58 (1981) ................................................................................... 123 People v. Slavin, 1 N.Y.3d 392 (2004) ................................................................................. 116 People v. Smart, 96 N.Y.2d 793 (2001) ......................................................................... 77, 139 People v. Solomon, 20 N.Y.3d 91 (2012) ........................................................ 63, 76, 79, 81-82 People v Spence, 92 A.D.3d 905 (2d Dept. 2012) ............................................................... 126 People v. Spicola, 16 N.Y.3d 441 (2011) ................................................................................ 80 People v. Taylor, 46 A.D.3d 1213 (3d Dept. 2007) ............................................................ 125 People v. Till, 87 N.Y.2d 835 (1995) ........................................................................... 125, 127 People v. Townsley, 20 N.Y.3d 294 (2012) ............................................................................. 76 People v. Wachtel, 124 A.D.2d 613 (2d Dept. 1986) .......................................................... 126 -ix- People v. Wandell, 75 N.Y.2d 951 (1990) .............................................................................. 82 People v. Wilder, 93 N.Y.2d 352 (1999) .............................................................................. 114 People v. Williams, 70 N.Y.2d 946 (1988) ........................................................................... 133 People v. Zaborski, 59 N.Y.2d 863 (1983) ............................................................................. 87 State v. Barrett, 401 N.W.2d 184 (Iowa 1987) ................................................................... 130 State v. Crumb, 649 A.2d 879 (N.J. App. 1994) ............................................... 117, 121, 130 State v. Eastwood, 850 A.2d 234 (Conn. App. 2004) ........................................................ 130 State v. Skinner, 2012 WL 3762431 (N.J. App. 2012) ...................................................... 131 State v. Tolson, 2005 WL 147918 (Del. Super. 2005) ....................................................... 131 STATE STATUTES CPL 70.20 ............................................................................................................................ 123 CPL 440.10 ...................................................................................................................... 80, 90 CPL 440.30 ........................................................................................................................ 4, 57 CPL 470.05 .......................................................................................................................... 123 Penal Law § 125.25 ................................................................................................................. 1 STATE RULES N.Y. Rules of Professional Conduct, Rule 1.7(b)(4) ........................................................ 67 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PAUL CORTEZ, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Jonathan Lippman, defendant appeals from a June 2, 2011 order of the Appellate Division, First Department. By that order, the Appellate Division affirmed a March 23, 2007 judgment of the Supreme Court, New York County (Carol Berkman, J.), convicting defendant of Murder in the Second Degree (Penal Law § 125.25) and sentencing him to an indeterminate prison term of 25 years to life. Defendant is currently incarcerated. On the evening of November 27, 2005, defendant brutally murdered 21-year- old Catherine Woods (“Catherine”) as she got ready for work in her apartment at 355 East 86th Street in Manhattan. Catherine, an accomplished dancer who had been working as a stripper to make extra money, lived in the East 86th Street apartment with her boyfriend, David Haughn. She had previously been involved with defendant, -2- who worked as a trainer at a gym. When Catherine ended her relationship with defendant in October 2005, he called her more than 200 times that month -- including more than 50 times in a single day -- in an attempt to get her back. They remained in touch over the next month. Between 5:00 and 6:00 p.m. on November 27, the Sunday after Thanksgiving, defendant called Catherine multiple times. Cell site records tracked defendant’s movements during that hour from his apartment on 106th Street to the vicinity of Catherine’s apartment on 86th Street. Shortly after 6:00 p.m., Haughn left the apartment to retrieve his car, in order to drive Catherine to work. With Haughn gone, defendant entered the building and proceeded to Catherine’s apartment. Once inside, defendant attacked Catherine in the bedroom, stabbing her repeatedly in the body and neck and ultimately slicing her throat. The throat wounds severed Catherine’s jugular vein and carotid artery, incapacitating her almost instantly and mortally wounding her. As defendant left the bedroom, he deposited bloody boot tracks on the bed sheets and a bloody hand impression on the wall. Meanwhile, Haughn parked his car near the building and waited for Catherine to come outside. When Catherine did not emerge from the building, Haughn tried to phone her and then went to the apartment. There, Haughn discovered Catherine lying limp in a pool of blood. Haughn called 911, and police and paramedics arrived a few minutes later. Catherine was pronounced dead at the scene. -3- Haughn cooperated fully with the police, who verified his statements. When the police interviewed defendant the next day, he denied committing the murder and gave an account of his whereabouts that omitted numerous details, including that he was near Catherine’s apartment at the time of the murder. Defendant’s fingerprint was subsequently matched to a bloody fingerprint recovered from the bedroom wall. The bloody boot prints on the sheets were matched to the size and type of boots that defendant had been wearing on the evening of the murder. On December 19, 2005, the police arrested defendant. The police searched defendant’s apartment and recovered his private journals, in which he had written entries bemoaning the end of his relationship with Catherine. Defendant’s writings demonstrated a fascination with knives and slit throats. In particular, they contained allusions to Catherine’s throat being cut and to a woman being “ripped apart” by a “gang of lunatics.” By New York County Indictment Number 6433/2005, filed on December 22, 2005, a grand jury charged defendant with Murder in the Second Degree. On January 29, 2007, following suppression proceedings not at issue on appeal, defendant’s jury trial commenced before the Honorable Carol Berkman. On February 15, 2007, the -4- jury convicted defendant as charged, and on March 23, 2007, the court sentenced him as described above.1 Defendant appealed, arguing, among other things, that both of his trial attorneys were burdened by conflicts of interest, that some of his journal entries constituted impermissible “bad acts” evidence and should not have been admitted, and that the prosecutor made improper comments in summation. On June 2, 2011, the Appellate Division, First Department, unanimously affirmed his conviction. See People v. Cortez, 85 A.D.3d 409 (1st Dept. 2011). Regarding the conflict of interest issue, the Appellate Division held that defendant’s lead attorney did not suffer from a conflict, and that defendant validly waived any conflict arising from an “unrelated criminal case pending” against co-counsel. Id. at 410. The court ruled further that, in any event, the “unexpanded record” was insufficient to demonstrate that “either or both” of the attorneys’ alleged conflicts operated on the defense. Id. Next, regarding the journal entries, the Appellate Division agreed with the trial court that defendant’s writings did not constitute “bad acts” evidence, since the entries “only reflected hostile thoughts.” Cortez, 85 A.D.3d at 411. The Appellate Division ruled that defendant’s remaining challenges to the journal entries were 1 On October 20, 2008, Justice Berkman denied defendant’s CPL 440.30(1-a) motion, which requested permission for a defense expert to conduct DNA tests of hair samples and other physical evidence. Defendant filed a notice of appeal from that order, and on May 27, 2010, the Appellate Division granted defendant’s motion to stay that appeal pending the disposition of his direct appeal. -5- unpreserved and in any event, meritless, and that any error was harmless “in light of the overwhelming evidence of guilt.” Id. Finally, the Appellate Division found all but one of defendant’s challenges to the prosecutor’s summation unpreserved, that “most of the challenged remarks were generally permissible,” and that any error was harmless. See id. at 411-12. The Honorable Helen Freedman, while concurring in the result, opined that the prosecutor had gone “beyond fair comment on the evidence” by arguing, based on the journal entries, that defendant had become “increasingly hostile to women” and had developed a “murderous rage.” Id. at 412 (Freedman, J., concurring). On July 17, 2012, Chief Judge Lippman granted defendant’s application for leave to appeal. See People v. Cortez, 19 N.Y.3d 972 (2012). On appeal to this Court, defendant reprises only some of the claims that he raised in the Appellate Division. Specifically, defendant abandons his claim that his lead attorney was burdened by a conflict of interest but contends that he did not validly waive any conflict arising from the unrelated case pending against co-counsel. Defendant argues further that co-counsel’s alleged conflict operated on the defense. In addition, defendant contends that his journal entries recounting violent fantasies about two of his previous girlfriends constituted impermissible “bad acts” evidence that should have been excluded. -6- THE EVIDENCE AT TRIAL The People’s Case A. Defendant’s Relationship with Catherine Woods 1. Catherine Woods moves to New York to pursue a dance career. While living with her boyfriend, David Haughn, Catherine meets defendant. In early 2002, after graduating from high school in Columbus, Ohio, Catherine Woods (“Catherine”) moved to New York to pursue a dance career (JOHN WOODS: A331, A333-35).2 Catherine had started dancing at a young age and had competed nationally in tap, jazz, modern, and ballet dancing (Woods: A332-33). Catherine’s father (JOHN WOODS) and mother helped support her and paid for her dance and voice lessons (Woods: A334, A337). Catherine lived with her boyfriend, DAVID HAUGHN, who moved to New York from Columbus in September 2002 (see Woods: A331, A335-36, A338-39, A349- 50; Haughn: A1031-33, A1038). They lived at 147 East 85th Street, in Manhattan, for two years (Haughn: A1033-34; see Woods: A335-36) and then moved to 355 East 86th Street, Apartment 2-D (Woods: A331, A335-36, A338-39, A349-50; Haughn: A1038). 355 East 86th Street was located near the corner of 86th Street and First Avenue (ANDREW M. GOLD: A479-81). Around the summer or fall of 2004 or 2005, while still living with Haughn, Catherine met defendant, the lead singer of a band named “Monolith.” During that 2 Page references preceded by “A” are to defendant’s appendix. -7- time, defendant brought Catherine to a few events attended by another band member, ALEJANDRO CASELLA (a/k/a “Alex,” “Alex Rude”) (Casella: A1248-51, A1256- 57, A1259-62, A1264-65). Defendant seemed excited and happy to be with Catherine, but Casella perceived that Catherine seemed “standoffish” toward defendant (Casella: A1259-60). On December 1, 2004, defendant wrote a poem in his private journal about a woman from the Midwest (see Detective STEVEN GOETZ: A1471-72). In the poem, defendant spoke of wandering “through the gardens of Kamala” (Goetz: A1471). After describing an erotic encounter with the Midwestern woman, defendant wrote, “[s]he wipes clean the shaft that cuts her throat” (Goetz: A1472). Defendant then observed, “I have bushwhacked this” (Goetz: A1472) and concluded, “This life will be my last, as I fade through shackles like a ghost” (Goetz: A1473). 2. In the spring of 2005, defendant shows up at Catherine and Haughn’s apartment and tells Haughn about his relationship with Catherine. On another occasion, defendant calls Catherine’s father “out of the blue” and discusses his concerns about Catherine’s lifestyle. On one occasion in the spring of 2005, a visitor buzzed Catherine and Haughn’s apartment. Catherine answered the buzzer and told the visitor to go away, but the buzzer continued to ring. Over Catherine’s objection, Haughn went downstairs to confront the visitor. Haughn went outside and walked down the block; in the lobby, he passed someone who resembled defendant (Haughn: A1053-54). When Haughn returned to the apartment, Catherine was talking to defendant. -8- Catherine told Haughn that she needed to “take care of something” and asked Haughn to wait in the hallway (Haughn: A1054-55, A1128). Catherine seemed upset with defendant (Haughn: A1128). When defendant left the apartment, he told Haughn, “I need to talk to you about something” (Haughn: A1055, A1128). The two men went outside together and walked west toward Second Avenue (Haughn: A1055). Defendant said that he had been “seeing” Catherine since August and that they had been romantically involved (Haughn: A1056, A1128). Defendant, however, seemed to be “giving up on” his relationship with Catherine (Haughn: A1129) and told Haughn to call if he needed anything (Haughn: A1056). Haughn did not see defendant again (Haughn: A1056- 57). When Haughn returned home, Catherine denied that she and defendant had been romantically involved. Catherine described defendant as “crazy” and said, “[d]on’t listen to him” (Haughn: A1057). Catherine explained that she and defendant were friends: they hung out together, went to the gym together, and went out to eat (Haughn: A1130). On another occasion that spring, defendant phoned Catherine’s father, John Woods, “out of the blue,” even though Woods did not know defendant (Woods: A339). Defendant said that Catherine had been “drugged” the night before at a club -9- called “Privilege” (Woods: A340, A354).3 Defendant added that he had taken Catherine to the hospital and left her there with a friend (Woods: A340-41, A355). Defendant told Woods that Catherine had been “stripping,” was addicted to alcohol and drugs, and was involved in prostitution (Woods: A341-42, A354).4 Woods called “Privilege,” but the club employees claimed not to know Catherine (Woods: A343, A358). When Woods asked if they knew “Eva or Ava,” Catherine’s stage name, they hung up on him (Woods: A343). Woods flew to New York the next day and confronted Catherine with defendant’s allegations (Woods: A343-44, A357-58). Catherine denied the allegations and appeared very upset; she did not appear sick or to have been in a hospital (Woods: A343-44). Catherine added that defendant had been calling her incessantly. In fact, defendant had been calling her at work, trying to get her fired (Woods: A345). Catherine said that she planned to get a restraining order against defendant (Woods: A345).5 3 Catherine had started working as a stripper to earn extra money, first at Privilege on 23rd Street (Haughn: A1042-43, A1124) and then at Flashdancers in Times Square (Haughn: A1043). 4 The day after the murder, Detective STEVEN GOETZ inspected Catherine’s apartment and found no drugs or drug paraphernalia (Goetz: A1422). Nor did Goetz find any pornography or pornographic videos (Goetz: A1420-22, A1500). Goetz recovered Catherine’s wallet, which did not contain business cards from producers or directors of pornographic movies (Goetz: A1420-21). In addition, Goetz found Catherine’s phone book, which did not contain a list of “Johns” (Goetz: A1422-23). 5 Catherine’s responses to Woods’ questions were admitted for the limited purpose of showing that the conversation occurred; they were not admitted for their truth (A344). When Catherine’s parents visited her in August 2005, they saw no signs of drug or alcohol addiction (Woods: A341). Nor did Woods see signs of drug or alcohol abuse when (Continued…) -10- 3. Defendant confides to a band mate, and writes in his private journal, that he loves Catherine but is upset that she continues to work as a stripper. At one point, defendant told Casella that he loved Catherine but was upset that she stripped for a living (Casella: A1251). Defendant added that he found matchbooks from hotels in Catherine’s apartment, leading him to conclude that she was “turning tricks” (Casella: A1261). In a journal entry dated March 20, 2005, defendant wrote that he had “saved” Catherine “from rape.” Nevertheless, he continued, she kept on “stripping for money” and “thought I betrayed her when I told her father of her nighttime secret life” (Goetz: A1473). Defendant wrote that Catherine “hate[d]” and “despise[d]” him (Goetz: A1474). He lamented that he “could not keep her close”; he would “wake with sadness in my heart every day for the loss of Catherine Woods” (Goetz: A1473- 74). Defendant concluded that Catherine did not “understand [his] love,” that he “can’t save her,” and that “[s]he doesn’t want to be saved,” so he should “[l]et her go” (Goetz: A1474). Still, defendant wrote, “I know she loves me and I am truly in love with her. But how do I trust? How do I continue loving her and not knowing if it will last?” (Goetz: A1474). Defendant wrote that he was “so fearful of rejection that I sabotage all love so that I know when the end will be” (Goetz: A1474). He concluded, “how wretched am I to feel this insecure” (Goetz: A1475). ______________________ (…Continued) Catherine visited Columbus in September and November 2005 (Woods: A341-42). Catherine never told Woods that she was dating defendant (Woods: A363; see Woods: A346). -11- 4. Catherine’s relationship with Haughn becomes more strained in the summer of 2005. Haughn confronts defendant about his continuing calls to Catherine. In the summer of 2005, during a period of financial stress, Catherine and Haughn took a break from their relationship (Haughn: A1041-42, A1045-46). They still lived together and had sex occasionally, but they considered themselves friends, and Haughn slept on the futon (Haughn: A1046-47, A1060). On July 18, after finding defendant’s phone number on a compact disk, Haughn called defendant to confront him, because he was still calling Catherine (Haughn: A1057-59, A1119-1123). Catherine had told Haughn that she did not want defendant to call her any more (Haughn: A1122-23). Around Halloween, Haughn moved out of Catherine’s apartment and stayed with a friend. About two weeks later, Haughn returned to the apartment (Haughn: A1047-49, A1133-34). Haughn was not dating other women, and as far as he knew, Catherine was not dating other men (Haughn: A1051, A1061, A1129, A1138). Although Catherine did not bring other men to the apartment (Haughn: A1061, A1156), she sometimes did not return home at night (Haughn: A1156). 5. In October 2005, defendant laments the end of his relationship with Catherine. Intensely angry, defendant writes about his frustration and pens a poem about killing a woman. He telephones Catherine incessantly. In October 2005, while working as a trainer at the Equinox Sports Club, defendant talked repeatedly about his “girlfriend” to one of his clients, STEPHANIE NICOLE BUCCI (Bucci: A1280-83, A1302-03, A1313). Defendant was -12- “ambiguous” about the nature of the relationship; it appeared to be on and off (Bucci: A1284). Defendant was going through a “hard time” in the relationship and appeared “hurt” that his girlfriend was engaging in activities of which he did not approve (Bucci: A1283). Specifically, defendant told Bucci that his girlfriend “was really into pornography and making pornograph[ic] movies” (Bucci: A1283). Defendant felt that he was a “good lover” and could not understand why his love was not good enough for her (Bucci: A1283-85). To Bucci, defendant appeared to be needy (Bucci: A1303). Defendant wrote a letter to Catherine in his private journal, which began, “Beautiful Catherine.” He described Catherine as the “love of my life” and wondered, “[h]ow can I make you understand this erotic subjugation to lusty men hurt you more than you know” (Goetz: A1475). In the letter, defendant urged Catherine to “quit the industry of selling skin” and “quit being treated like a whore,” because she was “so much more than this” (Goetz: A1475). Defendant added that perhaps he was a “fool to believe in you” (Goetz: A1475) and that “my love for you has endured so much anger, frustration and jealousy which I normally would not put up with” (Goetz: A1476). Defendant pleaded with Catherine to “quit the sex for money life for good as well as your ex” and asked her to choose “true love over money and comfortability” (Goetz: A1477). In a journal entry immediately following the letter to Catherine, defendant wrote, “Catherine turned out to be lying too. She was sleeping with David [Haughn] and the others the entire time she told me how she was true and in love with me” -13- (Goetz: A1477). Defendant wondered whether he “didn’t really mean anything to her,” and if so, “[h]ow could I feel so much love for her?” (Goetz: A1477). Defendant wrote that he had “wanted to find my soulmate lover” and wanted “this lonely and inadequate feeling to be gone” (Goetz: A1477). Defendant reflected, “I still must not lose hope. My true love exists somewhere. This is the last time” (Goetz: A1477-78). On October 12, 2005, defendant wrote a journal entry titled, “The Killin’ Machine,” which described a woman being “violated” and “rip[ped] apart” by a “gang of lunatics” (Goetz: A1478-79).6 In the next entry, defendant wrote that he “never wanted [f]or you to die” and referenced “the electric chair” (Goetz: A1480). Defendant continued that the woman was bound for “hell,” while he landed in a prison cell (Goetz: A1480-81). On October 19, defendant called Catherine’s cell phone 57 times; three of those calls were returned. Six days later, on October 25, defendant called Catherine 47 times; seven of those calls were returned. (Dominguez: A828-32). 6. In November 2005, defendant tells acquaintances that he is still in love with Catherine and cannot get over their breakup. In November 2005, defendant told Bucci that he and his girlfriend had broken up, but he hoped they would get back together (Bucci: A1285). In addition, 6 Casella described “The Killin’ Machine” as lyrics for a song on which he and defendant had been working (Casella: A1268-70). -14- defendant discussed the break-up with an acquaintance, SPENSER LEBOWITZ. Defendant told Lebowitz that he was still “in love” and “didn’t know how to get her off of his mind” (Lebowitz: A1588, A1603-04). On Friday, November 25, defendant seemed upset during his training session with Bucci. Bucci suggested that they meet for tea on Sunday (Bucci: A1286, A1299). During lunch time on November 25, MARGRET RICKTER saw Catherine with a man near the corner of 86th Street and Second Avenue (Rickter: A1320-23, A1330). Rickter got a good look at Catherine and the man; Rickter was close enough to touch them (Rickter: A1324, A1330-31). The man had dark, shiny, wavy hair, a little longer than shoulder length. He was “a little bit taller” than Catherine, had a chiseled chin, a masculine face, and was wearing a black leather jacket, a white shirt, and boots (Rickter: A1327-28, A1333). Catherine and the man were arguing; the man held Catherine by the arm, above her elbow, in a way that made Rickter uncomfortable (Rickter: A1324-26). At one point, Catherine exclaimed, “let me go” (Rickter: A1326). The man did most of the talking, and his voice was louder than hers (Rickter: A1326). Rickter later recognized Catherine from a photograph (Rickter: A1328-29).7 7 At trial, Rickter identified Catherine from a photograph as the woman she had seen on 86th Street (Rickter: A1328-29). Rickter was not asked to make an in-court identification of the man who argued with Catherine (see Rickter: A1319-41). -15- B. Catherine is brutally murdered in her apartment on the evening of November 27, 2005. Defendant’s cell phone records place him near the scene. 1. On the afternoon of November 27, defendant goes shopping with Bucci and makes an inappropriate, sexually-explicit comment. He also sends a text message to Catherine. At around 2:30 p.m. on Sunday, November 27, defendant and Bucci went shopping together on the upper east side (Bucci: A1286-91). Defendant was wearing a leather jacket and a collared shirt. His shoulder-length hair was pulled back (Bucci: 1288-90). Defendant brought a book of poetry and asked Bucci to sit down with him to read it, but Bucci declined (Bucci: 1287-88). Meanwhile, at 2:49 p.m., defendant sent Catherine a text message (see PA 228 [Ex. 148: chart summarizing defendant’s cell phone billing records for November 27-28, 2005]).9 While defendant and Bucci were at the Food Emporium on 82nd Street and Third Avenue (Bucci: A1288, A1291), defendant received a phone call. He told the caller that he was with a “beautiful blond thirty-six-year-old professional woman” (Bucci: A1293-94). Defendant said that they were going to buy strawberries and that he was “going to take them home and put them all over her body and lick them off” (Bucci: A1293). Upset over defendant’s comment, Bucci rescinded her previous invitation that defendant come to her apartment for brunch (Bucci: A1293-94, A1316- 17). They next went to Barnes & Noble on 86th Street (Bucci: A1292), where Bucci 8 References preceded by “PA” are to the People’s appendix. 9 Catherine’s cell phone was registered to her father, John Woods (Woods: A348; Sprint/Nextel records custodian ANDREW SCOTT ARNOLD: A882-83). -16- bought defendant a book of erotic short stories. She thought it would be therapeutic for him to face some issues and work them out (Bucci: A1298-1300). At 4:00 p.m., defendant walked Bucci to the corner of 82nd Street and Lexington Avenue, where they parted (Bucci: A1295). 2. Between 5:00 p.m. and 6:00 p.m., defendant calls Catherine multiple times. Cell site records track his movements toward her apartment. At 5:00 p.m., Catherine called defendant; the call lasted approximately three minutes and was routed to defendant through a cell tower on East 105th Street, a few blocks from his apartment (see PA 21: [Ex. 72: chart showing cell tower locations for defendant’s phone calls], PA 22 [Ex. 148]; see also T-Mobile legal compliance agent GABREAL DOMINGUEZ: A836-49).10 Calls were generally routed through a tower “within a few blocks” of where the cell phone was located (Dominguez: A849). Defendant called Catherine four times between 5:05 and 5:09 p.m. (see PA 22). One call, at 5:07 p.m., lasted 35 seconds; the others lasted only a few seconds each (see PA 21).11 At 5:11, Catherine called defendant; the call lasted about a minute and a half (PA 21-22). Defendant then called Catherine three more times between 5:13 and 5:14; each of those calls lasted only one or two seconds (PA 21-22). All of the calls 10 Defendant lived near the corner of 106th Street and Lexington Avenue, in Manhattan (JACQUES SZWARCBART: A579-82). 11 Cell tower records (PA 21) showed details for three calls from defendant to Catherine during this time period, while defendant’s billing records (PA 22) showed four calls. The billing records and cell tower records were compiled by different systems and used for different purposes (see Dominguez: A858-59). Billing records are more likely to include every call placed by a subscriber (Dominguez: A853). -17- between 5:05 and 5:14 were routed to and from defendant’s phone through the cell tower on 105th Street (PA 21; see Dominguez: A853-54, A856). At 5:27 p.m., defendant called Catherine again. That call lasted one second and originated from a cell tower located at East 86th Street and Madison Avenue (PA 21- 22). Between 5:36 and 5:47 p.m., defendant made a series of phone calls, including four or five attempts to call Catherine, lasting a few seconds each. Those calls originated from a cell tower located at 354 East 84th Street (PA 21-22).12 At 5:56 p.m., defendant called Catherine yet again; that call originated from the East 84th Street tower and lasted only two seconds (PA 21-22). During that time, Catherine and Haughn were in their apartment at 355 East 86th Street. Catherine was getting ready for work (Haughn: A1076-78).13 3. Shortly after 6:00 p.m., Haughn retrieves his car in order to drive Catherine to work. When he returns, he finds Catherine in the bedroom, lying in a pool of blood. Haughn calls 911; police and paramedics arrive and pronounce Catherine dead. Sometime after 6:00 p.m., Haughn left the apartment and went to 87th Street to retrieve his car, in order to drive Catherine to work (Haughn: A1043, A1080). Haughn did not lock the apartment door, which had two dead bolts, neither of which was self-locking (Haughn: A1086; see Goetz: A1420). In addition, the lock on the gate 12 Defendant’s billing records showed five attempts to call Catherine during this time frame; cell tower records showed four calls to Catherine (see PA 21-22). 13 While Catherine was getting ready, she and Haughn had sex, using a condom (Haughn: A1077-78). -18- guarding the 86th Street entrance to the building did not always catch, and it was often possible to push the gate open. Catherine and Haughn’s upstairs neighbor, ANDREW M. GOLD, had complained to the management company about the broken lock, but it had not been repaired (see Gold: A470-78, A494). Inside the gate, a locked door guarded the entrance to the lobby. However, the lock on the lobby door was often loose, and Gold had found it unlocked on many occasions (Gold: A478-79).14 On the way to get his car, Haughn stopped at 309 East 87th Street, where he worked the night shift as a doorman. Haughn wanted to retrieve a compact disc (CD) to play during the drive (Haughn: A1039-40; A1080-81, A1137). Haughn conversed for several minutes with another doorman, ABDUL KHALIK, and the Superintendent, JOSEPH TABONE (Haughn: A1081, A1138).15 Haughn then retrieved his CDs and went to his car (Khalik: A718-21, A726; Tabone: A736-37; Haughn: A1081).16 14 While the only “legal entrance” to the building was through the front door, there were other ways to enter and exit the building through the back (Goetz: A1497-98). 15 Haughn estimated that they conversed for 5 or 10 minutes; Khalik recalled that they conversed for 10 or 15 minutes; Tabone recalled that they conversed for about 15 minutes (Haughn: A1081-82, A1138-39; Khalik: A719, A726; Tabone: A735, A739). 16 Haughn seemed calm; he had a normal demeanor and did not appear angry (Khalik: A719-20; Tabone: A737-38). -19- At 6:33 p.m., defendant’s cell phone dialed Catherine’s number one final time. The call lasted just one second and originated from the 354 East 84th Street cell tower (PA 21).17 Meanwhile, Gold, who lived directly above Catherine and Haughn in apartment 3-D, was watching television. At 6:18 p.m., he had received a call from his fiancée, Donna Propp, and muted the television (Gold: A455-59, A487; Verizon Northeast Regional Investigator JAMES CARRICK: A870-76; Stipulation: A1583). The call lasted 21 minutes and 49 seconds (Carrick: A874-76). At one point during the call (which Gold estimated to be about 6:25 p.m.), Gold heard a woman scream loudly downstairs. He then heard scuffling, a dog “yelping,” and a second scream -- longer and louder than the first. Gold heard a thud and then nothing (Gold: A460-63, A469- 70, A495-96). Gold’s fiancée, too, heard the noises over the phone (Gold: A463, A490-91). The entire episode lasted no more than five minutes (Gold: A462, A496). After the scuffle ended, Gold looked out his window. He then went to the stairwell, looked upstairs and downstairs, and yelled, “Is there anyone out there?” (Gold: A464). Hearing no response, Gold “figured there was nothing going on” (Gold: A464). He did not call 911 and left the building a few minutes later, because he had plans (Gold: A465-64, A486-87, A494, A497). 17 The one-second call did not appear on defendant’s billing records (see PA 22). -20- Defendant made numerous calls from his cell phone after 6:33 p.m., but his phone records showed no further attempts to call Catherine (see PA 21-22). In the meantime, having retrieved his car, Haughn drove to the corner of 86th Street and First Avenue, where he usually met Catherine (Haughn: A1082-84). Haughn phoned Catherine to let her know he was coming, but there was no answer (Haughn: A1083). When Haughn arrived at the corner, he tried to call Catherine again, but there was still no answer (Haughn: A1084-85). Leaving the keys in the car, Haughn went to the building and buzzed the apartment; Catherine still did not answer (Haughn: A1085). Perplexed, Haughn returned to the car, retrieved his keys, and entered the building (Haughn: A1085). At the gate, a neighbor said that one of Haughn’s dogs, a Labrador, was running down First Avenue (Haughn: A1085-86).18 When Haughn arrived on the second floor, the Labrador was in the hallway; Haughn thanked the neighbor who had retrieved the dog (Haughn: A1087).19 Haughn entered his apartment; the door was closed but unlocked (Haughn: A1087- 88). As Haughn walked past the bedroom, he saw the bed pushed up against the doorway, blocking the entrance to the room (Haughn: A1088). There was blood “everywhere” (Haughn: A1088), and things were “all over the place” (Haughn: 18 Haughn and Catherine had two dogs, a Chihuahua and a Labrador (Haughn: A1049-51, A1065-66). 19 Detective MICHAEL CALLAN subsequently spoke to building resident Julia Jeon, whose boyfriend had retrieved Haughn’s dog (Callan: A1241-42). -21- A1089). Haughn saw Catherine lying on the floor (Haughn: A1089). Haughn was in shock; he had never seen so much blood in his life (Haughn: A1089). At 6:59 p.m., Haughn called 911 and said that he had just come home and found his girlfriend unconscious. Haughn said that there was blood everywhere and that he did not know if she was alive (Stipulations: A1584; Ex. 48 [911 recording]; see Police Officer MARIANE JOHNSON: A509-14). The operator asked Haughn if he knew how to perform CPR; he responded negatively (Haughn: A1089-91). The operator asked if Haughn could get any kind of movement from Catherine. Haughn nudged Catherine, trying to get some reaction, but there was none (Haughn: A1089- 90). Haughn, who was wearing Adidas sneakers, saw on the bed sheets boot tracks pointing out of the bedroom. He told the 911 operator about the boot tracks and surmised that someone had been in the apartment (Haughn: A1090-91). Haughn called out repeatedly, “Catherine, baby girl,” but he got no answer (Ex. 48 [911 recording]). In response to the 911 call, several police officers, including Detective STEVEN GOETZ, Police Officer JOHN SHEEDY, and Sheedy’s partner, Officer Guiheen, arrived at 355 East 86th Street (Sheedy: A374-76, A397; Goetz: A1410, A1492). Four paramedics, including WARREN LAU, also arrived at the scene (Lau: A425, A429-30). Haughn, who looked “very flush,” met the officers at the front gate. Haughn exclaimed, “I don’t think she’s breathing. I think she’s dead” (Sheedy: A378- -22- 82, A398; Lau: A427-28). Haughn appeared to be in a state of shock (Sheedy: A399); he was excited but not sweating (Lau: A440). Haughn took the officers and the paramedics upstairs to apartment 2-D (Sheedy: A380-82; Lau: A428-30, A443-44). The bed was blocking the entrance to the bedroom (Sheedy: A382-83, A392, A405; Lau: A423, A441, A449), and the bedroom walls were “bloody” (Lau: A432, A447-48). There were bloody shoe or boot prints on the bed (Lau: A433, A447-48, A452; Sheedy: A406), and the room was a mess (Lau: A449). Sheedy asked, “Where is she?” (Sheedy: A382). Haughn pointed and said, “On the other side of the bed” (Sheedy: A382). Lau and another paramedic climbed over the bed (Lau: A433, A443, A452) and found Catherine lying face down on the floor in a pool of blood (Lau: A436, A438, A442; see Sheedy: A383, A388-89). The paramedics moved the bed, standing it up against the wall in the corner (Sheedy: A382-83, A385, A393, A405, A415-16; Lau: A433-36, A449-50, A441). There was blood on the wall near Catherine’s feet and “blood everywhere” (Sheedy: A383, A404, A409-10). A bloody guitar lay on the floor less than two feet away from Catherine, its neck and strings broken (Lau: A450-51). The paramedics turned Catherine over, revealing a “huge laceration” on her neck (Sheedy: A383-84; see Lau: A437-38). She had no pulse, no heartbeat, and was not breathing (Lau: A438). The paramedics pronounced Catherine dead (Sheedy: A384; Lau: A437-38). -23- Detective Goetz located Haughn’s car, which was parked in front of a fire hydrant at the corner of 86th Street and First Avenue (Goetz: A1411-12). When Goetz asked who might have committed the crime, Haughn replied that someone named “Paul” or “Paul Vincent” had been stalking Catherine (Goetz: A1411, A1493- 94). Haughn appeared “visibly shaken,” “very upset,” and “in shock” (Goetz: A1411). C. Cell site records track defendant’s return to his apartment after the murder. Defendant skips band practice and meets a friend, who recalls defendant wearing a distinctive pair of boots. Defendant discards garbage at around 4:00 a.m., and he arrives late for work on Monday morning. At 6:50 p.m., less than 30 minutes after the murder, defendant made two calls from his cell phone. Those calls were routed through a tower near 95th Street and First Avenue (PA 21). Around 7:00 p.m., defendant called Bucci and left a message. When she called back a few minutes later, defendant said he was home reading a book and that he wanted to apologize for upsetting her earlier (Bucci: A1296-97, A1308; PA 22). At 7:16 p.m., defendant made a call from the vicinity of 1774 Lexington Avenue,20 and at 7:55 and 7:57 p.m., he made calls routed through the cell tower at 179 East 105th Street (PA 21).21 20 1774 Lexington Avenue is located near the subway stop at 110th Street and Lexington Avenue (see https://maps.google.com). 21 Around 8:00, Bucci called defendant again, because someone with an “unavailable” number had tried to call her. Defendant said that he had not called her (Bucci: A1297, A1311-12). -24- That evening, defendant did not show up for band practice, which had been scheduled for 6:00 p.m. (Casella: A1252-55). Expecting defendant to come, the other band members stayed until 8:00 p.m. (Casella: A1254-55, A1258). At that point, Casella called defendant and asked where he was (Casella: A1254; PA 22). Defendant said that he had been napping and had overslept (Casella: A1254-55). Defendant, however, did not sound like he had just woken up (Casella: A1264).22 Also around 8:00 p.m., defendant called Spenser Lebowitz and invited him to watch football at the Back Page, a bar on Third Avenue between 83rd and 84th Streets. A little later, they went to the apartment of another acquaintance, Rob, on 89th Street and First Avenue (Lebowitz: A1585-93; PA 22). Defendant was wearing a black leather jacket, jeans, and black boots (Lebowitz: A1594, A1612). Defendant seemed very depressed about the Giants’ game and did not mention his girlfriend that night (Lebowitz: A1591, A1604). At trial, Lebowitz viewed drawings of various Skechers shoes and identified the exact style of boots (model number 60110) that defendant had been wearing on the evening of the murder (Lebowitz: A1595-96; see Skechers Northeast Regional Sales Manager SALVATORE TRAMUTO: A1167-77). The next morning, defendant arrived late for his training session with a client, BRIAN SAMPSON. Defendant had been on time for every previous session 22 The other band members had planned to sever their relationship with defendant that night, because his performances had not been satisfactory (Casella: A1255, A1263, A1274). -25- (Sampson: A1399-1402). Defendant said that he had watched football the day before and that he was “ready to cry” over both the Jets’ and Giants’ games. Defendant “rambl[ed]” about the Jets and claimed that he had watched the games “all day” (Sampson: A1403-05). Sampson had never heard defendant talk about sports or football previously (Sampson: A1403-05). At around 4:00 or 5:00 a.m. one morning on the weekend of November 26-27, 2005, JACQUES SZWARCBART, who lived in defendant’s apartment building, saw defendant in front of the building. Defendant was wearing nothing but boxer shorts, even though it was cold outside. Defendant dumped some garbage in the garbage cans in front of the building (Szwarcbart: A582-87, A595-600).23 D. Haughn cooperates immediately with the police investigation. On the night of the murder, Haughn agreed to come to the station house, where detectives interrogated him at length, even accusing him of committing the crime (Haughn: A1093-96, A1100, A1116-17; see Goetz: A1412-13, A1499, A1502). Goetz sent other detectives to verify the information that Haughn provided (Goetz: A1414). Haughn willingly provided fingerprints, fingernail scrapings, and a DNA sample. He consented to a strip search, photographs of his body, and searches of the apartment and his car. Haughn also gave the police his clothing (Haughn: A1096-98, 23 When Szwarcbart read about the case in the newspaper, he realized the significance of what he had seen and contacted the police (Szwarcbart: A587-88, A594-95). Szwarcbart identified defendant in court as the man he had seen discarding the garbage (Szwarcbart: A581). -26- A1103-04, A1107-08, A1114, A1117; Goetz: A1416-17, A1499-1500, A1503-04). In addition, Haughn prepared a written statement (Haughn: A1098, A1140). Haughn had no bruises or cuts on his body or hands (Goetz: A1417, A1502-03), and the soles of his Adidas sneakers did not match the footprints on the bed sheets in the apartment (Goetz: A1418-19; see Haughn: A1090-91). Two or three lawyers tried to contact Haughn, but he told the detectives that he did not need a lawyer, because he was telling the truth (Haughn: A1098-99; Goetz: A1415-16). Haughn believed that “the truth would come out” and cooperated in order to help find Catherine’s killer (Haughn: A1099-1100). When the detectives asked Haughn whether Catherine had enemies, he gave the police a CD containing a photograph of defendant (Haughn: A1118).24 E. Defendant’s Statement to the Police At around 11:00 a.m. on November 28, the day after the murder, Detective MICHAEL AHEARNE and Sergeant Pannuccio went to speak with defendant at his apartment, located on the fourth floor of 154 East 106th Street (Ahearne: A1180-82, A1211). Defendant’s mother was also present (Ahearne: A1182). In response to the officers’ questions, defendant said that he had dated Catherine for about a year and 24 Haughn eventually retained counsel when the police wanted him to return for more questioning (Haughn: A1101-02). Still, Haughn continued to cooperate and answered the detectives’ questions (Haughn: A1102). On December 9, Haughn spoke to Detective Goetz with counsel present (Goetz: A1419). In total, Goetz spoke to Haughn five times, and Haughn answered Goetz’s questions every time (Goetz: A1419-20). -27- that he first learned about the murder when his mother saw Catherine’s picture in the newspaper (Ahearne: A1183; see Ahearne: A1186-89). Defendant agreed to come to the 19th Precinct (Ahearne: A1182-83, A1212). At the station house, defendant told Detective Ahearne that on Sunday, November 27, he taught a yoga class in the morning and finished at 2:30 or 3:00 p.m. (Ahearne: A1189-90).25 He then went shopping with “Stephanie,” walked her to her apartment at 4:20 p.m., and took the bus home (Ahearne: A1190-91). Defendant said that he tried to call Catherine at 5:30 p.m. (Ahearne: A1191). Around 8:00, he met a friend, Spence, to watch football at a bar on 82nd Street and Third Avenue (Ahearne: A1191-93). After about 45 minutes, they went to the apartment of another friend, Rob, at 89th Street and First Avenue to watch the remainder of the game (Ahearne: A1191-92). Defendant said that he walked home at 11:15 or 11:30, stopping on the way at a smoke shop to buy rolling papers (Ahearne: A1192). According to defendant, he had last been in Catherine’s apartment two weeks earlier and had not been in her bedroom for several months (Ahearne: A1193). During the interview, defendant cried at times, claiming to be upset about Catherine’s death (Ahearne: A1206, A1212-14). 25 Defendant’s mother accompanied him to the station house but was not present during the interview (Ahearne: A1183, A1216-17). -28- Defendant prepared a written statement, adding more detail (Ahearne: A1194- 98, A1213). In particular, defendant wrote that Catherine had a bad relationship with Haughn and wanted him “out of the picture” (Ahearne: A1199-1200). Defendant added that Catherine “used to strip and do porn” (Ahearne: A1200) and that, around December 2004 or January 2005, she started stripping again to make money, against defendant’s wishes (Ahearne: A1200). Defendant recounted an incident where Catherine had called him from Privilege after blacking out and waking up in the bathroom (Ahearne: A1200-01). Defendant said that he took Catherine to a hotel that night, because she did not want to go home, and that he took her to a hospital the next morning (Ahearne: A1201). Defendant then retrieved the phone number of Catherine’s parents from her cell phone, called her father, and told him about Catherine’s “potential rape when she blacked out” (Ahearne: A1201-02). Catherine told her father that defendant had made up the story and stopped speaking to defendant for a while (Ahearne: A1202-03). Defendant claimed that, when Haughn moved out of Catherine’s apartment in August or September 2005, Catherine told defendant that she loved him and was faithful to him (Ahearne: A1203). Defendant recounted, however, that a month and a half before the murder, they split up after Catherine discovered that defendant was checking her phone (Ahearne: A1203-04). Still, defendant said, they continued to talk (Ahearne: A1204). -29- According to defendant, he last saw Catherine on Saturday, November 26, at the Equinox health club (Ahearne: A1204). Defendant said that on Sunday the 27th, he called Catherine at 6:30 a.m. and suggested that they get together in the afternoon (Ahearne: A1204). Catherine called back, but defendant missed the call (Ahearne: A1204). Defendant said that when he called Catherine around 5:00 p.m., she was “very short” with him and “seemed preoccupied” (Ahearne: A1204-05). The call was disconnected; Catherine called back and said that they should talk later, because “she needed to get ready” (Ahearne: A1205). Defendant called back “several times,” because he “knew something was wrong” and thought Catherine was “mad at” him (Ahearne: A1205). Defendant said that he then “started calling clients for appointments” and “friends to talk about Thanksgiving” (Ahearne: A1205). In addition, defendant called his friend Spenser and asked to “hangout” (Ahearne: A1205). Defendant claimed that he did not learn of the murder until 10:30 a.m. the next day, when his mother told him that Catherine was dead (Ahearne: A1205). While defendant was preparing the written statement, he told Detective MICHAEL CALLAN about the incident where he rang the buzzer of Catherine’s apartment. According to defendant, Catherine told him to “get lost”; nevertheless, he went inside and knocked on Catherine’s door. Defendant said that Catherine told him to leave, after which he left without talking to Haughn (Callan: A1234-38). Defendant added that a few weeks later, Haughn called him and told him to leave Catherine alone (Callan: A1236-37). -30- Defendant, who was wearing jeans with dress shoes, consented to provide a shoe print and a DNA sample (Ahearne: A1206-07, A1216, A1221; Goetz: A1426- 27). Defendant had a blood blister on one of his fingers, which he said came from lifting weights (Ahearne: A1206, A1218). He had no other injuries to his hands and no visible injuries to his torso (Ahearne: A1218-20). After the interview concluded at around 4:45 p.m., Detectives Ahearne and Mooney drove defendant and his mother back to defendant’s apartment (Ahearne: A1207-08, A1212). F. A bloody fingerprint recovered from the crime scene is matched to defendant. A boot print on the bed sheets is matched to the exact type of shoe that defendant wore on the evening of the murder. At 8:50 p.m. on the evening of the murder, Detective JOHN ENTENMANN of the Crime Scene Unit arrived at Catherine’s apartment (Entenmann: A532-34). Entenmann surveyed the living room, kitchen, bathroom and bedroom, took photographs, and prepared a sketch of the apartment (Entenmann: A535-38). Entenmann spotted a blood pattern on the north wall of the bedroom, behind where the bed had been propped up (Entenmann: A542-49, A637, A638-39, A653, A660). The blood appeared to have come from an “arterial spurt”: that is, blood had sprayed from a breached artery onto the wall (Entenmann: A641). On the wall, 4 feet 3 inches above the ground, Entenmann saw a “hand transfer” pattern made in blood. Specifically, blood spots on the wall indicated where it had been touched by all five fingers of a person’s hand (see Entenmann: A616-26, A646, A654, A662-63; PA 23-26 [Exs. 30, 32: photos of wall and blood pattern]). The hand transfer pattern was -31- “patent,” or visible to the naked eye (Entenmann: A616-17, A641-43, A645-46). Based on his training in blood pattern analysis, Entenmann opined that, due to the amount of blood on the hand pattern, it was made by the perpetrator during the crime (Entenmann: A647).26 The NYPD Emergency Service Unit (ESU) subsequently cut out that section of the wall, and Entenmann sent the wall section to the lab for enhancement (Entenmann: A624-26, A651, A654). In addition, Entenmann found bloody boot prints on the bed sheets (Entenmann: A545, A551, A553-56, A641-42). Entenmann also observed a bloody boot print on the back of Catherine’s shirt (Entenmann: A544, A552-53, A556-57). ESU cut out an area of the floor containing yet another bloody boot print (Entenmann: A617, A626-30). NYPD Criminalist ALEX CHACKO, a forensic scientist with Master’s degrees in engineering and physics, subsequently received the section that ESU had cut out of Catherine’s bedroom wall (Chacko: A680-85). Five bloody smudges appeared to have been made by the fingertips of a person’s left hand touching the wall (see PA 25 [Ex. 32]). Chacko treated the sheet rock with a chemical, amido black, which reacts with a protein present in blood. The reaction revealed a latent fingerprint in a finger-sized 26 A blood transfer, that is, a visible impression left in blood, is a “patent print” (Entenmann: A645; see NYPD fingerprint examiner ANNABELLE BRANIGAN: A760, A792-93). In contrast, a “latent print” is not visible and must be revealed with chemicals or powder (Entenmann: A645; Branigan: A759-60). Patent prints are usually deposited during the crime; latent prints can last a long time (Entenmann: A647-48). Entenmann did not put any reagents on the handprint or enhance it (Entenmann: A648-49). -32- smudge at the upper right hand corner of the blood pattern (Chacko: A685-93, A706- 08, A707-11; see PA 25 [Ex. 32: photo of blood transfer pattern on wall]). Specifically, the smudge containing the fingerprint was located where the person’s left index finger appeared to have touched the wall (see PA 25). A chemical reaction with the amido black turned the latent fingerprint blackish-purple (Chacko: A685-86, A711; see PA 29 [Ex. 138-A: photo of fingerprint revealed by amido black]). If a blood stain contains a fingerprint not visible to the naked eye, amido black reacts with proteins present in blood “to show a purple color print” (Chacko: A706-07). Thus, the color of the chemical reaction led Chacko to conclude that the fingerprint on the wall was made in blood (Chacko: A711).27 Chacko photographed the latent fingerprint that he found in the upper right hand corner of the hand transfer pattern and then enhanced the fingerprint using computer programs, which changed the contrast and color to make the print clearer (Chacko: A686-87, A689, A692-93, A709; PA 27, PA 31 [Exs. 138, 138B: photos of enhanced print]). DNA analysis, conducted by the New York City Medical Examiner’s Office (OCME), confirmed that the stains on the wall were Catherine’s blood (OCME Criminalist JOANNA SCHLESSER-PERRY: A907, A926, A930-34, 27 Chacko was not sure if amido black could have a positive reaction with materials other than blood (Chacko: A708, A710, A712). -33- A936-44, A964).28 In fact, all of the blood recovered from Catherine’s body and from the apartment belonged to Catherine (Schlesser-Perry: A944-49, A952, A954-55, A965-66). On December 20, 2005, approximately three weeks after the murder, NYPD fingerprint examiner ANNABELLE BRANIGAN compared the print lifted from the wall to defendant’s fingerprints (Branigan: A752-58, A770-79, A790).29 Branigan determined that the print was “identical” to defendant’s left index finger: Branigan found 13 points of comparison and no discrepancies (Branigan: A779-86, A800, A803). NYPD procedures required only eight points of comparison for a positive identification (Branigan: A785, A812).30 Pursuant to NYPD procedure, another examiner (William Amstead) and a supervisor verified the match (Branigan: A789, A796-97).31 In addition, Forensic Examiner WILLIAM D. BODZIAK, a fellow at the American Academy of Forensic Science and an expert in footwear impression evidence, examined the bloody shoe prints found on the bed sheets, Catherine’s shirt, 28 The DNA test was performed on a sample taken from an area of blood spatter immediately above the fingerprint (Schlesser-Perry: A934-35). 29 Defendant was arrested on December 19, 2005 (Ahearne: A1208-10, A1223). 30 Branigan could not determine the age of the latent fingerprint (Branigan: A815). 31 The NYPD had millions of prints on file and had never discovered two persons with the same fingerprints (Branigan: A790, A808). -34- and the floor (Bodziak: A971-73, A975-77, A1003-05).32 The bed sheets contained one heel print on the fitted sheet and between 20 and 30 impressions on the flat sheet (Bodziak: A1003-04). Using chemicals to enhance the impressions (Bodziak: A977, A979-83, A1005-06), Bodziak determined that the footprints on the bed sheets were made by size 10 ½ or 11 Skechers shoes; the “best fit” was size 10 ½ (Bodziak: A978- 79, A981-990). The impressions matched the soles of a pair of Skechers Cool Cat Bully Two boots that Bodziak obtained for comparison (Bodziak: A978-79, A1019- 20). Cool Cat Bully Two boots have the same outsole design as model number 60110 Sketchers boots -- the exact boots that Lebowitz saw defendant wearing on the evening of the murder (Tramuto: A1170-72; Lebowitz: A1595-96). The impressions on Catherine’s shirt also bore a Skechers design, but Bodziak was unable to determine the shoe size (Bodziak: A1008-09). The floor impressions contained a Skechers design but were not adequate for further comparison (Bodziak: A993-94). In October 2006, Bodziak measured defendant’s feet and took impressions of them (Bodziak: A991, A995-96). Based on the measurements, Bodziak concluded that defendant wore size 10 ½ shoes (Bodziak: A1002).33 In fact, at the time the 32 Bodziak had published a book titled “Footwear Impression Evidence” and had testified as an expert in footwear impressions approximately 200 times (Bodziak: A973-75). 33 Defendant’s heel-to-arch measurement, which is often the most comfortable fit, was 10 ½ (Bodziak: A999-1000). Haughn also wore size 10 ½ shoes (Haughn: A1153). Bodziak requested elimination prints from shoes worn by the police and paramedics who had responded to Catherine’s apartment (Bodziak: A1014); he received elimination prints (Continued…) -35- measurements were taken, defendant was wearing size 10 ½ shoes, which appeared to fit him well (Bodziak: A997, A1022). G. An autopsy reveals that Catherine died from multiple stab and slash wounds that severed her jugular vein and her carotid artery. On November 28, Doctor MICHAEL GREENBERG of the Medical Examiner’s Office performed an autopsy of Catherine’s body (Greenberg: A1520, A1523-24, A1532-33; A1563). Catherine was 5’6” tall and weighed 141 pounds (Greenberg: A1571). She had suffered two horizontal incised wounds, or incisions, to her neck: one incision was 4 ½ inches long, and the other 5 ½ inches long (Greenberg: A1527, A1540-41). Catherine had also suffered a stab wound to her neck, approximately 1 ¾ inches in length (Greenberg: A1527).34 All three wounds were approximately two inches deep and severed both jugular veins. The wounds also partially transected the carotid artery (Greenberg: A1527). The wounds to Catherine’s neck were fatal (Greenberg: A1541, A1554): they caused rapid incapacitation and death from loss of blood and oxygen (Greenberg: A1541-42). Catherine most likely could not have stayed on her feet after receiving the wounds; even if she did not die immediately, she could have crawled at most for a few minutes (Greenberg: A1542; see Greenberg: A1574-75). Each of the slash wounds ______________________ (…Continued) from everyone except EMS technician Warren Lau (Bodziak: A1013). Lau wore size 7 shoes (Lau: A439, A448), which were too small to have deposited the prints (Bodziak: A1023-27). 34 An “incised wound” is longer than it is deep, while a “stab wound” is deeper than it is long (Greenberg: A1530-31). -36- (incisions) was most likely inflicted from behind, and each would have been fatal on its own (Greenberg: A1542-44). Catherine could not have screamed after her neck was slashed, because the wounds severed her voice box (Greenberg: A1527, A1544, A1575). Similarly, the stab wound to Catherine’s neck would have been independently fatal and would have prevented her from screaming (Greenberg: A1546-47). In addition, Catherine suffered wounds to her right forearm, right palm, left arm, and left wrist, as well as a stab wound that went entirely through her left hand and “perforated” a tendon (Greenberg: A1529-30, A1548-51). Catherine also had several other injuries caused by a sharp object, including a “jagged” stab wound to her left cheek that penetrated into her mouth (Greenberg: A1527-28, A1537-38), two shallow wounds next to the left ear (Greenberg: A1528), and multiple wounds on her torso and left shoulder (Greenberg: A1528-29, A1547-98, A1553). In total, Catherine suffered 20 incised wounds and 8 to 10 lacerations (Greenberg: A1530-31). All of the incised and stab wounds were caused by a weapon with a sharp edge. Although Greenberg could not discern the precise nature of the weapon (Greenberg: A1531-32), he was “fairly certain” that some if not all of the wounds were caused by a knife (Greenberg: A1573, A1576). In addition, Catherine suffered a blunt force wound above her left eye (Greenberg: A1534-36) and abrasions to her forehead (Greenberg: A1536-37). -37- The autopsy did not reveal the precise order in which the injuries occurred (Greenberg: A1554). However, Catherine’s injuries were consistent with a person attacking her from the front with a knife and stabbing her in the shoulders, after which she put her hands up to defend herself. The attacker then stabbed her in the neck, incapacitating her, after which he came behind her and slashed her throat (Greenberg: A1554, A1565, A1570). If Catherine had been standing when she was attacked, blood would have spurted out from her carotid artery (Greenberg: A1545). Greenberg next collected strands of hair adhering to Catherine’s hands and to her legs (Greenberg: A1555, A1566-68). In addition, Greenberg collected fingernail scrapings, specimens of blood, bile, tissue, and Catherine’s stomach contents, and samples of her head and pubic hair (Greenberg: A1555-58, A1568). Toxicology screens were negative for all substances, including alcohol, illicit drugs, and medications (Greenberg: A1560-62). The autopsy did not reveal any signs of drug or alcohol abuse (Greenberg: A1559). H. Other Crime Scene Evidence On the evening of the murder, Detective Entenmann recovered possible blood samples from numerous areas, including Catherine’s body, the broken guitar, various areas of the bedroom, the living room wall (near the entrance to the bedroom), underneath the toilet seat, and under the doorknob on the front door (Entenmann: -38- A558-64, A604, A607-08, A644-45, A650-51, A658).35 In addition, Entenmann recovered loose hairs from Catherine’s left thigh, right thigh, and abdomen (Entenmann: A564-66). Catherine had additional loose hairs in her hands; Entenmann took samples and sent them to be analyzed (Entenmann: A652-53).36 Entenmann recovered more hair from the bathtub drain (Entenmann: A615-16).37 VALERIE WADE-ALLISON, a hair and fiber examiner for the NYPD Crime Laboratory, recovered 30 or 40 loose hairs from Catherine’s clothing. Nearly all of those hairs were similar to Catherine’s hair (Wade-Allison: A1344, A1355-57, A1369- 70).38 Only two light-brown hairs found on Catherine’s clothing were dissimilar to Catherine’s hair; they were otherwise not suitable for comparison (Wade-Allison: A1357-58). Likewise, nearly all of the 12 hairs recovered from Catherine’s hands during the autopsy were similar to Catherine’s hair. One of the hairs in Catherine’s 35 Entenmann lifted a fingerprint from the guitar (Entenmann: A603-05, A642, A651), which had no value and could not be matched to anyone (Branigan: A786-87). Entenmann unsuccessfully attempted to lift fingerprints from several other areas, including various bottles in the apartment, a mirror in the bedroom, and doorknobs (Entenmann: A569-70). Most of the surfaces were not conducive to fingerprints (Entenmann: A570). Haughn’s DNA was found on a soda can (Schlesser-Perry: A949-50). A water bottle contained the DNA of at least two persons, neither of whom could be identified (Schlesser- Perry: A950, A952-54). 36 No semen was found in oral, vaginal, or anal swabs of Catherine (Schlesser-Perry: A956-57). 37 Goetz checked the block for surveillance cameras, but no cameras in the area recorded anything of evidentiary value (Goetz: A1423-25, A1490). 38 Visual hair comparison can determine only that a hair could have come from a person; it cannot match hair samples definitively (Wade-Allison: A1350, A1369). -39- hands was colorless (that is, grey); the others were dark and chemically treated, like Catherine’s hair (Wade-Allison: A1362-64, A1372-74).39 In addition, the hair recovered from the bathtub drain was similar to Catherine’s (Wade-Allison: A1359).40 None of the hairs recovered from the apartment or during the autopsy resembled defendant’s hair (Wade-Allison: A1368-69, A1373-74). I. The police arrest defendant and search his home and workplace. On December 19, 2005, the police arrested defendant (Ahearne: A1208-10, A1223). The next day, Detective Goetz searched defendant’s apartment (Goetz: A1450). Goetz found a red journal (or diary) on the mattress in the bedroom,41 as well as a bag containing, among other things, several more journals, a leather jacket, and a knife (Goetz: A1451-1457, A1487). Defendant’s name was written in the journals (Goetz: A1455).42 39 Haughn had blond hair (Goetz: A1496). 40 Of the nine hairs recovered from the bed sheets, four were dissimilar to Catherine’s hair. Of those four, two were chemically treated and dark colored. The other two, one dark and one light, were not chemically treated (Wade-Allison: A1360-61). Animal hairs were found on the guitar and on Catherine’s left thigh and abdomen (Wade-Allison: A1353-54, A1361-62). 41 At trial, Casella identified the red journal (marked for identification as Exhibit 99) as defendant’s (Casella: A1267). 42 The journals contained hundreds of entries, including the entries about Catherine described above. In previous years, defendant had also written about his failed relationships with two other women, Barbara (“Boo”) and Amanda (see Goetz: A1457, A1461-70, A1483, A1492). In some of the entries, defendant expressed violent thoughts. For instance, in a May 18, 2000 entry, defendant drew a picture of a man with a sword and wrote a poem including the lines, “Deciding on the knife / skin versus metal / Vein versus blade” (Goetz: A1466). In 2002, defendant wrote that he had “pent up rage” about Amanda sleeping with (Continued…) -40- The Defendant’s Case A. Defendant’s Testimony In August 2004, defendant PAUL VINCENT CORTEZ -- who was 26 years old at the time of trial -- met Catherine Woods at the New York Sports Club, where he worked as a personal trainer (Cortez: A1748, A1803, A1811-13, A2087). Defendant was 5’6” tall and weighed 145 pounds (Cortez: A1751). Because of his job, defendant kept very fit (Cortez: A2087). Catherine was living with her boyfriend, David Haughn, but said that their relationship was troubled (Cortez: A1816-17).43 In October or November 2004, defendant and Catherine began dating. Although Catherine was still living with Haughn, she told defendant that she and Haughn were just friends (Cortez: A1826-30). According to defendant, he visited Catherine’s apartment approximately 50 times and stayed over a few times in early 2005. Despite those repeated visits, defendant encountered Haughn only once (Cortez: A1827-33). One night in early April 2005, Catherine asked defendant to pick her up at Privilege, a club where she worked as a stripper. Catherine was crying and looked in “really bad shape.” Defendant believed that Catherine had been raped (Cortez: ______________________ (…Continued) another man, and that he had “thoughts of revenge,” but he was “unable to kill” (Goetz: A1469-70). Also, in February 2004, defendant drew a picture of a person with a knife in her back (see Goetz: A1470-71). Defendant never engaged in acts of violence against Barbara or Amanda (Goetz: A1512-13; Stipulation: A1584). 43 According to defendant, Catherine said that on one occasion, Haughn had “destroyed” their dishes during a fight (Cortez: A1819-20). -41- A1837-43, A1848). Defendant took Catherine to a hotel, where they spent the night, and he took her to an emergency room the next morning (Cortez: A1848-49, A2069, A2074). Defendant then left, because he had to sign the contract for his new apartment (Cortez: A1850-51). Later that day, Catherine told defendant that she was fine and would go back to work (Cortez: A1851). Defendant said that Catherine would have to choose between him and her lifestyle; she replied that it was an unfair ultimatum and that she needed the money (Cortez: A1851-52). As an “intervention” (Cortez: A1852), defendant called Catherine’s father and said that Catherine had performed in pornographic movies, was bulimic and anorexic, and had done drugs. Defendant added that Catherine had been drugged at a club where she worked (Cortez: A1834-37, A2063, A2065-67). However, defendant did not report to the police that Catherine had been drugged or raped (Cortez: A2070). Catherine was “livid” that defendant had called her father. She told defendant that he had “betrayed” her (Cortez: A1855-57). Defendant and Catherine did not speak for about three weeks (Cortez: A1861). Defendant wrote a journal entry about the episode expressing sadness “for the loss of Catherine Woods” (Cortez: A1861- 67); however, defendant did not intend to harm Catherine (Cortez: A1863, A1867-69; A1873-74). Defendant and Catherine resumed their relationship the next month (Cortez: A1869-73). -42- On one occasion in June 2005, defendant went to Catherine’s apartment and rang the buzzer. Although Catherine told him to go away, defendant went upstairs and talked to Catherine in the hallway (Cortez: A1878-81). When Haughn returned to the apartment, defendant talked to him, and they walked together to the subway (Cortez: A1881-82). During the walk, defendant told Haughn that he was having sex with Catherine (Cortez: A1883). Haughn replied, “Wow. She got me good” (Cortez: A1883). Haughn added that he and Catherine had been less intimate lately and were going through a breakup (Cortez: A1883-84). Upset that Catherine and Haughn were still together, defendant wrote in his journal that “Catherine turned out to be lying to me” (Cortez: A1884). Defendant continued his relationship with Catherine but was not faithful to her (Cortez: A1885- 86). In August 2005, after Haughn moved out, defendant saw Catherine more often. Between August and November, they had sex at Catherine’s apartment approximately 10 times (Cortez: A1886-87). On direct examination, defendant testified that, at times, they had sex when Catherine had her period, and defendant’s hands got “dirty” (Cortez: A1887-88). On those occasions, defendant “might have” put his hands on the north wall of the bedroom -- the wall where the police had found the hand transfer pattern in Catherine’s blood (Cortez: A1888-89). On cross-examination, however, defendant denied that his handprint was on the wall of Catherine’s bedroom (Cortez: A2024) or that he had touched the wall after touching Catherine’s menstrual -43- blood (Cortez: A2024-25).44 Defendant admitted that at some point he had “touched almost every wall in that apartment” (Cortez: A2025). In October 2005, the month before the murder, Catherine became angry when she caught defendant checking the calls on her cell phone. Catherine stopped talking to defendant, prompting him to call her 40 or 50 times (Cortez: A1904-14). Defendant kept calling Catherine until she picked up; she told him to stop (Cortez: A1916-17). At one point, they spoke for 83 minutes, as defendant tried to make up with Catherine (Cortez: A1914-15). After another argument on October 25, defendant called Catherine approximately 50 times (Cortez: A1915, A1918-A1923). Defendant explained that when Catherine was mad, she would act like a “princess,” and he would have to woo her back (Cortez: A1920). Defendant called Catherine 292 times in October, including 57 times on October 19 and 41 times on October 25 (Cortez: A2041-44). He claimed, however, that she had called him just as often (Cortez: A2041). According to defendant, he and Catherine remained friends after October 25 but were no longer boyfriend and girlfriend (Cortez: A1928). They were intimate at times, but it was not exclusive (Cortez: A1928-29). Still, defendant and Catherine talked frequently and sent text messages to each other (Cortez: A1940-43, A1980). 44 Defendant even denied stating that he had touched the wall after touching Catherine’s menstrual blood (see Cortez: A2025). Upon further questioning, defendant testified that it “may have been a possibility” that he touched the wall after touching Catherine’s menstrual blood (Cortez: A2026). -44- Defendant wrote a song for his band titled “The Killin’ Machine” (Cortez: A1890-A1895). The song was inspired by the band’s drummer, who said that women always wanted men with large penises (Cortez: A1895). The song was a “raunchy, bawdy story” that combined themes of sex and violence, similar to a man saying, “I want to fuck the shit out of that girl” (Cortez: A1895-96). Defendant described the song as “humor” (Cortez: A1895); the band members joked that the machine would “pulverize” women and “beat that pussy and all that stuff” (Cortez: A1896). Defendant claimed that the woman in the song was not Catherine (Cortez: A2046) and that the song -- despite its title -- was about having sex, not killing (Cortez: A2046-49).45 45 In other poems, defendant wrote that he had “become a misogynist” and that he wanted to “fuck all these girls and rip their hearts with [his] hard cock and turn them to stone” (Cortez: A2022). In addition, defendant wrote that “[s]ince your mother and other women hurt you, you want to bury every girl in the ground” (Cortez: A2022), and that he wanted to “tear their cunts apart and kill that which hurts” (Cortez: A2023). Defendant wrote further that “Love hurts,” “Love is just pain,” and he wanted to “kill that which causes pain” (Cortez: A2023-24). Defendant offered detailed explanations for his writings. For instance, defendant described his violent thoughts about Amanda as an attempt to “delve into” emotions when auditioning for the role of Mozart in a play (Cortez: A1786-88). He testified that his references to “skin versus blade” and “knife versus vein” concerned suicide (Cortez: A2054- 55) and that his desire not to be a “victim” or a “martyr” referred to relationships in general and was intended as empowering (Cortez: A2011-12). Defendant added that his drawing of a person with a dagger in his or her back was a picture of Julius Caesar being stabbed in the back. He testified that a “phantom,” not visible in the picture, was “performing an operation,” and that the drawing was inspired by a hernia surgery that defendant had undergone (Cortez: A1777-78, A2053). Defendant described his drawings of people with knives as merely “doodles” of comic book characters (Cortez: A1756, A1775-78, A2052-53). In addition, defendant testified that his reference in the “Gardens of Kamala” poem to (Continued…) -45- During the week of November 20th, defendant saw Catherine several times, and they were intimate at defendant’s apartment (Cortez: A1929, A1932-34, A1943-44). On Wednesday, November 23, Catherine sent defendant a text message saying, “I know. I love you” (Cortez: A1797). Catherine had told defendant “very many times” that she loved him, including every day in November (Cortez: A1938, A1942). That night, defendant took Catherine to his band’s performance, where they sang “Killin’ Machine” (Cortez: A1929-31). Defendant invited Catherine to his mother’s house for Thanksgiving (Thursday, November 24), but she spent the day with Haughn instead (Cortez: A1934-36, A1937-39). Defendant talked to Catherine on Friday, November 25, and saw her at Equinox on Saturday; they discussed getting together soon (Cortez: A1936- 37, A1944-45, A1947, A2020).46 On Sunday, November 27, defendant called Catherine at 6:00 a.m. They talked about meeting for coffee later (Cortez: A1948). Defendant went to the yoga studio at 9:00 a.m., where he worked behind the desk; he sent Catherine a text message to remind her about meeting later (Cortez: A1951). Catherine called back while ______________________ (…Continued) Catherine’s throat being slit described Catherine’s rape, by her former landlord, three years earlier (Cortez: A1810, A2053-54, A2073). 46 Defendant was not on the street with Catherine on Friday (Cortez: A2078-80, 2093-94). Defendant acknowledged, however, that he owned a black leather jacket (Cortez: A2080). -46- defendant was working but did not leave a message (Cortez: A1952). At 2:30 p.m., defendant had not heard from Catherine, so he called Stephanie Bucci, one of his clients at Equinox (Cortez: A1951-53). Defendant ran errands with Bucci: they went to P.C. Richard and then to the Food Emporium (Cortez: A1954-59). Defendant had written a poem called Sakhavati, which Bucci was “really interested” in seeing (Cortez: A1954-56). The poem described uncertainty over whether a woman really loved him (Cortez: A2056-58) as well as a “savage disposition” and a desire to “kill” (Cortez: A2060-62). According to defendant, he had written the poem during the summer, and it was not necessarily about Catherine (Cortez: A2058-59). While defendant and Bucci were at the Food Emporium, defendant talked on the phone to a friend (Jaki) and joked that he was with an attractive, blonde, 36-year- old woman who was buying strawberries. Defendant said he was going to eat the strawberries off her body (Cortez: A1960). Bucci then became angry (Cortez: A1960- 61). They went to Barnes & Noble, where Bucci bought defendant a book of erotica (Cortez: A1961-62). Defendant and Bucci parted around 4:30 (Cortez: A1962). Defendant might have called Catherine once that afternoon but did not get in contact with her (Cortez: A1962). After defendant returned home, Catherine called him (Cortez: A1964). They were disconnected, so he called back several times, but the calls went straight to voice mail (Cortez: A1964). Catherine called back and said she was getting ready to go to work, although she did not want to go (Cortez: A1964-65). They got disconnected -47- again, and defendant tried to call back. Catherine did not return defendant’s calls, so defendant became worried (Cortez: A1966). He then went to 86th Street to see if Catherine wanted to see him; sometimes she would skip work and go out with him instead (Cortez: A1965-66). Defendant tried to call Catherine when he got off the bus at 86th Street (Cortez: A1966-67). He then went to a Starbucks on 84th Street, where he read a book and tried to call Catherine (Cortez: A1967, A2028-29). Defendant also called some of his clients (Cortez: A1967-69, A2029), and he called Bucci to thank her for the book and to apologize for the misunderstanding earlier (Cortez: A1969). At 7:30 p.m., defendant called Alex, because he had skipped his band’s rehearsal (Cortez: A1970). In addition, defendant called his friends Jaki and Vince (Cortez: A1970-73). Defendant then walked home from Starbucks (Cortez: A1973- 74). He did not go to Catherine’s building that evening (Cortez: A1975). When defendant arrived home, Bucci called him back (Cortez: A1975). Alex also called, and defendant falsely claimed he had slept through the band practice (Cortez: A1976, A2040). Defendant then arranged to meet another friend, Spence, at the Back Page at 8:00 p.m. (Cortez: A1976-77). They watched football at the Back Page for half an hour and then went to Rob’s house, where they smoked marijuana (Cortez: A1977-79). Defendant walked home shortly before midnight (Cortez: A1979, A2075-76). Defendant was wearing a black leather jacket and black leather Converse shoes (Cortez: A1977, A2075-76). -48- The next morning, defendant arrived at work late, because his Metrocard had expired (Cortez: A1983, A2076). Later that day, police detectives questioned defendant at his apartment; defendant’s mother was also present (Cortez: A1985-87). Defendant was “babbling” and “hysterical” (Cortez: A1989). The police took defendant and his mother to the station house, where they questioned defendant without his mother present (Cortez: A1989-90). Defendant testified variously that he had learned of Catherine’s death during the ride to the precinct (see Cortez: A1899) and that he heard the news from his mother before the police arrived (see Cortez: A1983-85). At the precinct, the detectives said that defendant was a suspect and accused him of killing Catherine (Cortez: A1991-92). Defendant made a statement but omitted certain details about his activities on November 27 (Cortez: A1993-96, A2033). For instance, defendant did not tell the police that he had gone to a Starbucks in Catherine’s neighborhood on the day of the murder (Cortez: A2029-30). After questioning defendant for 4 ½ hours, the police told defendant that he could go home after he gave a written statement (Cortez: A1995, A1997). When defendant said it would be impossible to write everything, the police told him to write the important parts, so he left out several details (Cortez: A1995-96, A1999, A2034). Although defendant was distraught and in shock (Cortez: A2004, A2037), he remembered the names of five detectives who questioned him (Cortez: A2037). -49- Defendant allowed the detectives to take a DNA swab, inspect his body, take pictures, and take an impression of his Johnston & Murphy dress shoes (Cortez: A2000-03, A2006). Defendant’s shoe size was between 10 and 11, depending on the type of shoe (Cortez: A2003). The detectives then drove defendant home (Cortez: A2005). According to defendant, the police searched his belongings, including his laundry and garbage, to help him find his Metrocard (Cortez: A2005-06). After they found the Metrocard, defendant gave it to the police, and they left (Cortez: A2006). According to defendant, he wrote a journal entry titled “witch hunt” five or six days later, which referenced prison, the electric chair, and being “trapped in hell.” Defendant explained that the entry was about being wrongfully convicted, and he wrote it in response to the police interview and newspaper articles wrongly implying that he had killed Catherine (Cortez: A1898-1900, A2013-19). Defendant denied that he had killed Catherine (Cortez: A1863, A1869, A2020, A2094). B. Testimony of Defendant’s Mother In late April or early May 2005, defendant brought Catherine to meet his mother, IVETTE CORTEZ (“Ivette”), at the Bronx Zoo (Ivette: A2097-99). Defendant and Catherine held hands and were very affectionate (Ivette: A2099). In August, Ivette saw Catherine at one of defendant’s shows (Ivette: A2100-01). Defendant kept some of Catherine’s favorite foods in his apartment, and she kept some things in the bathroom (Ivette: A2101-02). Ivette took defendant and Catherine -50- to lunch two weeks before Catherine’s murder. They appeared to be in love (Ivette: A2103-04). Defendant told Ivette that he would invite Catherine and Jaki for Thanksgiving; however, they did not come (Ivette: A2105). After learning of Catherine’s death from the news, Ivette went to defendant’s health club and told him about it (Ivette: A2107-09). When defendant saw the newspaper article, his “legs gave away from under him” (Ivette: A2110). Ivette went home with defendant (Ivette: A2110); he was in shock when the detectives arrived (Ivette: A2111). Ivette accompanied defendant to the 19th Precinct, where the police separated them (Ivette: A2110-11, A2113). Defendant was teary-eyed and tried to help the officers (Ivette: A2112-13). C. Testimony of Defendant’s Friends and Acquaintances According to defendant’s best friend from high school, WILFREDO ACOSTA (Acosta: A1631-32), and his sophomore English teacher, JACQUELINE ANN KORNBLUM (Kornblum: A1715-17), defendant had kept a journal since high school, in which he wrote all kinds of things, including lyrics (Acosta: A1634-35; Kornblum: A1721). For instance, defendant wrote a song in high school about a breakup that included lyrics about death (Acosta: A1636). Defendant also drew pictures of warriors stabbing people that emulated comic books (Acosta: A1638-39). Knives and swords were consistent themes in defendant’s drawings (Acosta: A1649). However, defendant did not talk to Acosta about knives or carry a weapon (Acosta: 1403). A drawing in defendant’s journal appeared to be influenced by “Spawn” or -51- “Spiderman” and was similar to a drawing of a warrior that defendant had made in Acosta’s high school yearbook (Acosta: A1636-38, A1650). Spawn was a hit man who was murdered, came back from the dead, and killed numerous people for revenge (Acosta: A1650). In February or March 2005, defendant told Acosta about Catherine and said that he was not sure where the relationship was going (Acosta: A1640-41). In late June or early July, defendant and Catherine went to a café with JAKI LEVY, who had known defendant since 1997 and worked with him at a yoga studio in Union Square. Defendant and Catherine seemed very affectionate and were kissing passionately (Levy: A1676-79). About a month before Catherine’s death, ANONYMOUS FEMALE ONE saw defendant at a party (Anonymous Female One: A1659).47 Defendant seemed sad about his difficult relationship with Catherine, which had changed him “from a boy to a man” (Anonymous Female One: A1659-60).48 Defendant did not appear angry (Anonymous Female One: A1660-61). In early November, defendant told Levy that he was not seeing Catherine any more (Levy: A1680-81). 47 Anonymous Female One, a model and actress, had known defendant for five years (Anonymous Female One: A1655-56). She chose to testify anonymously for “business purposes” (Anonymous Female One: A1654). 48 Similarly, defendant had been heartbroken after breaking up with a previous girlfriend, Amanda (See Anonymous Female One: A1658; JOHN DOE: A1696-97). -52- Defendant spoke to Levy several times on November 27 (Levy: A1684-86). During their phone conversations at 7:12 p.m. and 8:06 p.m., defendant seemed happy and “positive,” which was different from normal (Levy: A1686-87, A1689-90). On the Tuesday or Wednesday after Thanksgiving in 2005, Acosta saw defendant at Casella’s house (Acosta: A1641-42). Defendant was carrying a red satin journal (Acosta: A1642-43). Defendant and Acosta spent the night in a hotel in Long Island, catching up (Acosta: A1643). When defendant took off his t-shirt at night, Acosta noticed that defendant had no bruises or scratches on his body (Acosta: A1643-44). In addition, defendant saw Levy a day or two after Catherine’s murder; they went out for chocolate muffins and then went back to Levy’s apartment (Levy: A1688-89). When defendant was getting ready for bed, he took his shirt off, and he had no cuts or bruises (Levy: A1688-89). Defendant was smart, did well in school, and was a talented actor (Acosta: 1396-98). Defendant was a “tough physical guy”: he played football in high school and was a member of the wrestling team (Acosta: A1648-49; Kornblum: A1716-17, A1724-25). Anonymous Female One described defendant as a very emotional person (Anonymous Female One: A1656, A1661, A1664), adding that his writings were “very emotional” (Anonymous Female One: A1663). Defendant’s friends and acquaintances testified that he had a reputation in the community for peacefulness (Acosta: 1396; Anonymous Female One: A1657, A1662; LANGLEY DANOWITZ: A1674; Levy: A1689; JOHN DOE: A1695, A1698-99; JEFFREY DANOWITZ: -53- A1704; Kornblum: A1722-23).49 Defendant also had a reputation for being an honest and generous person (Doe: A1694-95). Defendant practiced yoga, meditated, and studied Buddhist texts (Doe: A1695, A1701). D. Police Witnesses Detective THOMAS RYAN interviewed Haughn at 7:40 p.m. on November 27, 2005 (Ryan: A1728).50 Haughn was “extremely cooperative” and was not evasive; he answered every question that Ryan posed (Ryan: A1732, A1736). Haughn talked to the police for at least 18 hours, and detectives verified his statements (Ryan: A1731-32, A1740). During the interview, Haughn appeared “distraught,” “shaken,” and “sad” (Ryan: A1728). A vein in Haughn’s forehead seemed “more pronounced” than normal (Ryan: A1728), and Haughn tapped his leg during the interview (Ryan: A1729). Haughn told Detective Ryan and Police Officer JOHN SHEEDY that he had left the apartment to get his car about 20 minutes before calling 911 (Sheedy: A1618; Ryan: A1733-34). However, Haughn could not remember the exact time that he had 49 Doe, who testified anonymously for business purposes, met defendant at Boston University in 1999 (Doe: A1691-93). LANGLEY DANOWITZ had been one of defendant’s personal training clients at New York Sports Club for about a year (L. Danowitz: A1668-71). Langley’s husband, JEFFREY DANOWITZ, had also been a client of defendant’s (J. Danowitz: A1702-03). 50 Although at one point the transcript records that the interview occurred on November 28, Ryan testified that Haughn related the events of “that night” -- that is, the night of the murder (see Ryan: A1728, A1730). Thus, it appears that the interview occurred on November 27, the evening of the murder. -54- left the apartment (Ryan: A1734). Haughn believed that “Paul Vincent” committed the crime; he did not know defendant’s last name (Ryan: A1740-41). On November 28, Detective PAUL GRUBB interviewed Andrew Gold (Grubb: A1742). Gold said that, the previous evening, he had heard a loud scream from someone in the building, and a struggle ensued for 5-7 minutes (Grubb: A1742- 44). Gold then head another loud scream, which was cut off by a loud thump (Grubb: A1743-44). Gold estimated that he heard the first scream about 10 minutes into his phone conversation with his fiancée, which had commenced at 6:18 p.m. (Grubb: A1746). On Sunday, December 5, 2005, Detective KEVIN WALLA interviewed Jacques Szwarcbart (Walla: A1621). Szwarcbart told Walla that, on Saturday, Sunday, or Monday of the previous week, he had observed a man dressed in his underwear holding a garbage bag (Walla: A1621). About 30 reporters had congregated outside the building, and Szwarcbart did not want to talk to Walla, because he was afraid of both the reporters and defendant (Walla: A1623-25). Szwarcbart gave short answers to Walla’s questions and did not explain his answers (Walla: A1625-26). -55- POINT I THE TRIAL COURT PROPERLY EXERCISED ITS “BROAD DISCRETION” BY ALLOWING DEFENDANT TO PROCEED WITH THE ATTORNEYS OF HIS CHOICE (Answering Defendant’s Brief, Points I and II). Defendant was represented by two attorneys at trial: Laura Miranda, Esq., who acted as his lead counsel and counsel of record, and Dawn Florio, Esq., who assisted Miranda. Prior to trial, defendant was informed, both by his attorneys and by the court, that Florio suffered from a potential conflict of interest, because she was the subject of a pending criminal charge in Manhattan unrelated to defendant’s case. The judge conducted an inquiry about the potential conflict, and defendant informed the court, both personally and through his un-conflicted attorney Miranda, that he wished to proceed with Florio as co-counsel. Defendant did not argue at trial that Florio should be relieved or that the conflict affected the representation in any way. In fact, defendant averred that Florio had not been compromised by her pending case. Nevertheless, on appeal, defendant contends that the trial court’s inquiry was insufficient (DB: 13-41). He alleges further that the supposedly deficient inquiry constituted a structural or mode of proceedings error requiring automatic reversal (DB: 42-69). Alternatively, defendant argues that Florio’s conflict operated on the defense, pointing to purported deficiencies in counsel’s handling of the forensic evidence (DB: 70-74). -56- Defendant’s arguments are unavailing. As the Appellate Division found, defendant knowingly and voluntarily waived any conflict arising from Florio’s pending case, both in private discussions with his attorneys and in open court. Defendant -- an intelligent, sophisticated litigant -- was well aware of the potential conflict and made a conscious choice to proceed with his full legal team intact. By electing to proceed to trial with Florio as Miranda’s co-counsel, defendant has waived any right to complain now about Florio’s alleged conflict of interest. In any event, even if the court’s inquiry was in any way deficient, automatic reversal is not required. In accordance with this Court’s holding in People v. Konstantinides, 14 N.Y.3d 1 (2009), Florio’s pending case created only a potential conflict of interest. Thus, even in the absence of a valid waiver, defendant’s conviction should not be reversed unless the conflict operated on the defense. And here, as the Appellate Division found, the record does not support defendant’s claim that Florio performed deficiently or that she was compromised in any way because of her pending case. Quite to the contrary, defendant’s attorneys presented a vigorous and spirited defense despite the overwhelming evidence of defendant’s guilt.51 51 Defendant does not renew his claim, which he raised in the Appellate Division, that Miranda too was burdened by a conflict, because the court had held her in contempt after she failed to appear on the scheduled trial date. Nor does defendant renew his Appellate Division argument that the purported conflicts of both attorneys were unwaivable. -57- A. The Relevant Record Following his arrest, defendant was initially represented by Legal Aid Society (see PA 9 [Supreme Court File Cover]). Defendant subsequently retained Laura M. Miranda, Esq., who filed a Notice of Appearance on April 11, 2006 (PA 10 [Notice of Appearance]). After defendant’s omnibus motion was granted in part and denied in part (see PA 2 [4/19/06 Tr.]; PA 11-12 [4/19/06 Dec.]), Miranda filed a renewed motion to suppress physical evidence, which the court denied on June 5, 2006 (see PA 13-16 [6/5/06 Dec.]). In addition, Miranda obtained authorization to retain several experts at the court’s expense, including experts in DNA evidence, fingerprints, footprints, hair analysis, and handwriting (see PA 17-18 [9/19/06 Mot.]; A12 [CPL 440.30 Dec., 10/28/08]).52 On November 20-21, a Huntley/Wade hearing was held before Justice Berkman. Miranda represented defendant, assisted by another attorney who had not filed a notice of appearance: Dawn M. Florio, Esq. (see A25-211). The court scheduled the trial to begin on January 22, 2007, rejecting Miranda’s request for an adjournment until January 29 (see A210-11, A216-17). However, neither Miranda nor Florio appeared in court on January 22, 23, or 24 (see A218-28; PA 6 [1/24/07 Tr.]). Instead, Miranda submitted an affidavit stating that “she had to take care of her mother,” who was suffering from an unspecified illness (A221). The 52 Specifically, in its decision denying defendant’s post-trial CPL 440.30 motion, the court observed that “before trial” it had “authorized experts pursuant to Article 18-b of the County Law” (A12). -58- court, after conducting an inquiry, found Miranda’s failure to appear “contemptuous” (A226) and announced its intention to fine her $1,000 (A227).53 On Thursday, January 25, Miranda appeared in court with her personal attorney, Robert Feldman (A229-30). Feldman told the court that Miranda was “not ready to proceed to trial,” because defendant was considering “whether to fire Ms. Miranda or not” (A231). Feldman added that defendant “want[ed] his whole legal team,” including Florio, who was not in court because of her uncle’s funeral (A232). Feldman stated that “[t]his is a serious murder case,” and defendant “is not willing to go ahead without both of his lawyers, and until he decides whether he’s going to keep Ms. Miranda or not” (A232). Miranda confirmed that defendant was considering firing her, because of the “negative publicity” that both defendant and Miranda had received over “the past few days” (A244). Defendant addressed the court personally and stated that he had not made up his mind, explaining that he “had not seen the reports” (A244). The court remarked that it would not delay the trial for defendant to “think about” firing his lawyer, observing that “[t]his has been manipulated quite enough” (A244). In response to Feldman’s and Miranda’s arguments that Miranda had only recently received some of the discovery material, including the reports of the People’s 53 Additionally, in response to a letter from defendant’s mother complaining about “hundreds of pages of documentation served in November,” the court noted that Miranda had received most of the discovery material “long before November” (PA 6-7). -59- footwear and handwriting experts, the court reiterated that Miranda had been afforded sufficient time to prepare (see A234-37, A242). The court noted that opening statements would not begin until Monday, giving counsel “plenty of time” to review the discovery material (A242). The court added that although Florio had been present at the suppression hearing, she had not filed a notice of appearance. Instead, Miranda was the sole “counsel of record” (A232). The court had presumed that Florio was “of counsel” to Miranda and “under her direct supervision” (A232). “For that reason,” the court explained, it had not questioned defendant regarding a “possible conflict” of interest, even though Florio had a “case pending” against her in New York County (A232-33). The court observed that it had not been informed of Florio’s “role in the [defendant’s] case” and presumed that “Miranda, as counsel, was making sure there was no conflicting representation as to her client” (A233). Miranda told the court that defendant had retained both her and Florio at the same time. Miranda noted, however, that because of Florio’s pending case, defendant preferred that Florio not act as counsel of record (A240-41). The court remarked that Florio was “welcome” to participate in the trial “if Ms. Miranda wants her” (A233, A237, A239-40), even though her “role in this case is a little ambiguous” (A239). However, because the trial had already been delayed for three days, the court refused to adjourn it further for Florio to appear (see A240). -60- The trial commenced on Monday, January 29, with Miranda and Florio representing defendant (see A250 [appearances]). On January 30, the second day of trial, the court addressed defendant about Florio’s “pending matter,” which “Ms. Miranda tells me she’s discussed with you” (A520).54 The court warned defendant that Florio’s pending case could pose a conflict of interest, if she “might, for some reason, be more interested in her own matter than yours” (A520). The court remarked, “I’m not quite sure I see it, factually,” but said that it was not “up to me to make that decision” (A520-21). The court reiterated that Florio had a “serious” case pending in New York County and that, if convicted, she could “lose her license to practice law” (A521). The court reiterated that it “want[ed] to make it explicit that you understand that, and you understand that’s what’s going on, and that you wish to proceed with her, in any event” (A521). Defendant replied, “Yes. I do understand that. And she has not compromised this case on account of her own” (A521). The court remarked that defendant did not “need . . . to describe that to me. Just as long as you understand that and you want to go along with that” (A521). Defendant declared, “Yeah. I would love to” (A521). 54 Defendant and Miranda were present in court, but Florio was not (see A520). Miranda stated that Florio was “stuck in traffic” (A521-22). -61- The trial continued with Miranda and Florio representing defendant. Defendant raised no complaints at trial about Florio’s representation.55 On appeal to the Appellate Division, defendant argued that Florio had been burdened by a conflict of interest, due to her pending case. The Appellate Division ruled that defendant had waived any conflict, stating: At the time of trial, there was an unrelated criminal case pending in the same county against defendant’s other [non- lead] attorney. Since the attorney was not accused of any crime relating to the charges against defendant, the conflict was waivable (see e.g. United States v Perez, 325 F3d 115, 125- 127 [2d Cir 2003]). After the court conducted a sufficient inquiry pursuant to People v Gomberg (38 NY2d 307 ), defendant made a valid waiver of the conflict, and we reject defendant’s arguments to the contrary. Cortez, 85 A.D.3d at 410. In addition, the Appellate Division rejected defendant’s claim that her lead counsel, Miranda, was burdened by a conflict due to her contempt citation. See id. Further, the Appellate Division found that “the existing record is insufficient to show that the conduct of the defense was affected by the operation of either or both of these alleged conflicts of interest.” Cortez, 85 A.D.3d at 410. In that regard, the Appellate Division declared, defendant’s claims that “his attorneys mishandled various aspects of the extensive forensic evidence against him, by failing to take certain 55 On February 21, six days after the trial ended, the court denied Miranda’s request for reconsideration of the contempt order against her (A2367-71 [2/21/07 Dec.]). The court added that co-counsel Florio could not be held in contempt for failing to appear, because she “had not formally filed a notice of appearance” (A2368). -62- investigative steps and otherwise,” were “unreviewable on direct appeal, and thus procedurally defective, because they involve[d] matters outside the record.” Id. The court explained: If the attorneys reasonably believed that the lines of attack on the prosecution’s forensic evidence suggested by defendant on appeal would have been futile or counterproductive, their conduct would not have fallen below an objective standard of reasonableness. Similarly, if these lines of attack would have actually been futile or counterproductive, counsel’s failure to pursue them would not have been prejudicial. Accordingly, the present, unexpanded record, which is silent as to these matters, fails to satisfy either the reasonableness or prejudice prongs contained in either the state or federal standards. Id. B. Defendant validly waived any conflict of interest arising from Florio’s pending case. Initially, as the Appellate Division found, defendant validly waived any conflict arising from Florio’s pending case. He has therefore relinquished any right to argue on appeal that Florio was burdened by a conflict. 1. The Applicable Law Of course, the right to effective assistance of counsel “ensures not only meaningful representation but also the assistance of counsel that is ‘conflict-free and singlemindedly devoted to the client’s best interests.’” People v. Berroa, 99 N.Y.2d 134, 139 (2002) (quoting People v. Longtin, 92 N.Y.2d 640, 644 ). The decision whether to proceed with a conflicted counsel, however, generally belongs to the -63- defendant. Indeed, “an important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant and such choice should not be lightly interfered with.” People v. Gomberg, 38 N.Y.2d 307, 312 (1975). Thus, a court should respect the defendant’s waiver of an attorney’s conflict so long as “the defendant ‘has an awareness of the potential risks involved in that course and has knowingly chosen it.’” People v. Solomon, 20 N.Y.3d 91, 95 (2012) (quoting Gomberg, 38 N.Y.2d 307 at 313-14).56 When a trial court becomes aware of a possible conflict of interest, it should take steps to “protect the right of an accused to effective assistance of counsel.” Gomberg, 38 N.Y.2d at 313. “At the same time,” however, the “court should not arbitrarily interfere with the attorney-client relationship.” Id. Thus, while the court should conduct an inquiry into the potential conflict, it “must be careful not to pursue its inquiry too far,” lest it “infringe upon the defendant’s right to retain and confer with counsel of his own choice.” Id. The court’s sole obligation is to ensure that the defendant has made an “informed decision” to “proceed with his attorney.” Id.; see also People v. Caban 70 N.Y.2d 695, 696-97 (1987) (upholding waiver where court’s 56 Defendant does not contend that Florio was burdened by a conflict of interest so intractable as to be unwaivable. Indeed, unwaivable conflicts will arise only in extreme circumstances, such as where the defendant’s attorney also represents key prosecution witnesses, see People v. Carncross, 14 N.Y.3d 319, 326-30 (2010), or where defense counsel is himself implicated in the defendant’s crimes, see Bellamy v. Cogdell, 974 F.2d 302, 306 (2d Cir. 1992). -64- inquiry was “sufficiently searching to assure that [defendant’s] waiver was informed and voluntary).57 Significantly, when inquiring about an attorney’s conflict, the court need not follow any “prescribed format or catechism.” People v. Lloyd, 51 N.Y.2d 107, 112 (1980). To be sure, the court should “examine the nature of the relationship or circumstances that are alleged to establish a conflict.” People v. Ennis, 11 N.Y.3d 403, 410 (2008), cert. denied, 129 S. Ct. 2383 (2009). However, the court need only identify the conflict “in general terms” and need not explain it to the defendant “in detail.” See Lloyd, 51 N.Y.2d at 111. In fact, a court might impermissibly invade the defendant’s attorney-client privilege, and thus infringe his right to counsel, by inquiring into defense strategies or into details of the defendant’s conversations with counsel. See id. at 111-12. Further, in conducting its inquiry, the court “may rely upon counsel’s assurances that he had fully discussed the potentiality of conflict with his clients and received their continued approbation.” Gomberg, 38 N.Y.2d at 314. After all, a defense attorney has an “ethical obligation” to disclose conflicts and to obtain a client’s “informed consent” to continued representation. Gomberg, 38 N.Y.2d at 314; 57 Defendant cites Caban for the proposition the trial judge’s inquiry must be “searching” and “thorough” (DB: 13, 26). As explained, however, this Court simply held that the judge’s inquiry must be “sufficiently searching to assure that [the defendant’s] waiver was informed and voluntary.” Caban, 70 N.Y.2d at 696-97 (emphasis added). In fact, in Caban, the defendant did “not contest the thoroughness of the court’s inquiry.” Id. at 697. -65- see also Lloyd, 51 N.Y.2d at 111 (“An attorney must, of course, realize and inform his client of any potential conflict of interest”). For that reason, the “court’s inquiry need not be as thorough or as detailed as that required of the attorney.” Lloyd, 51 N.Y.2d at 111. The court is merely obliged to make a “reasonable inquiry.” Gomberg, 38 N.Y.2d at 316. The trial court retains “broad discretion” to determine whether an alleged conflict disqualifies an attorney from continuing in the case. People v. Carncross, 14 N.Y.3d 319, 330 (2010). The trial judge sits in the best position to “balance the defendant’s constitutional right to the effective assistance of counsel against the defendant’s right to be defended by counsel of his own choosing.” Id. at 327.58 Finally, if a defendant has been sufficiently informed of the attorney’s conflict and elects to continue with that attorney as counsel, he should not be heard to complain about that choice later. See People v. Ortiz, 49 N.Y.2d 718, 719 (1980) (where defendant “insisted on continued joint representation” notwithstanding potential conflict, he could not “subsequently contend that he was deprived of effective assistance of counsel because of a possible conflict of interest”); Gomberg, 38 N.Y.2d 58 In Carncross, this Court held that the trial court did not abuse its “broad discretion” in finding an unwaivable conflict of interest based on defense counsel’s representation of the defendant’s father and girlfriend, both of whom would be prosecution witnesses at trial. See Carncross, 14 N.Y.3d at 326-29. This Court described the trial judge’s discretion as “especially broad” and expressed “trust” that trial courts will rely on their “experience and sound judgment” to “strike an appropriate balance of the relevant interests.” Id. at 330 (internal quotations omitted). -66- at 315 (where defendants “acquiesced in the continuation” of counsel’s representation despite conflict, they “should not be permitted to complain” on appeal). 2. Argument Applying those standards here, the trial court properly exercised its “broad discretion” by permitting defendant to proceed to trial with counsel of his choice. Indeed, following a “reasonable inquiry,” the trial court properly ascertained that defendant had made a knowing and voluntary decision to proceed with Florio as co- counsel despite her pending case. In that regard, at a pretrial calendar call on January 25, 2007, Miranda’s attorney (Robert Feldman) declared that defendant wanted “his whole legal team,” which included Miranda and Florio, to represent him at trial (A232). Feldman added that, since defendant was charged with a serious crime, he did not wish to proceed “without both of his lawyers” (A232). At that point, the court noted that Florio (who was absent that day because of her uncle’s funeral) had not filed a notice of appearance. For that reason, the court observed, it had not questioned defendant regarding Florio’s pending case in New York County (A232-33). In response, Miranda explained that defendant had retained her and Florio simultaneously and that defendant preferred that Florio not act as counsel of record, because of her pending case (A240-41). Thus, contrary to defendant’s claim (DB: 23), the court conducted an inquiry prior to trial and explained Florio’s conflict. Miranda -- defendant’s un-conflicted lead -67- counsel -- unequivocally averred that defendant knew about Florio’s pending case and wished to retain her anyway. In fact, for that very reason, defendant asked Miranda to serve as counsel of record and Florio to serve as co-counsel. Defendant, therefore, made an intelligent and reasoned choice regarding how his attorneys would handle the potential conflict. The trial court properly relied on Miranda’s assurances that defendant had made a knowing, voluntary, and intelligent decision. Indeed, given counsel’s ethical duty to explain the conflict of interest to defendant and obtain a waiver, see N.Y. Rules of Professional Conduct, Rule 1.7(b)(4), the court properly relied on Miranda’s “assurances that [s]he had fully discussed the potentiality of conflict with [defendant] and received [his] continued approbation.” Gomberg, 38 N.Y.2d at 314. Significantly, Miranda’s assurances were even more valuable than the conflicted attorney’s assurance in Gomberg itself. Miranda was singlemindedly devoted to defendant’s interests; indeed, defendant does not assert that she was burdened by a conflict. Thus, Miranda’s presence at trial ensured that defendant’s interests were vigorously represented. See People v. Konstantinides, 14 N.Y.3d 1, 11 (2009) (holding that co-counsel’s conflict did not affect the defense where “defendant was simultaneously represented by conflict-free counsel who was singlemindedly devoted to [his] client’s best interests”) (internal quotations omitted). Notably, too, in Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court observed that a defense attorney is in “the best position professionally and ethically to -68- determine when a conflict of interest exists or will probably develop in the course of a trial.” Id. at 347 (internal quotations omitted). The Court explained that defense attorneys have “an ethical obligation to avoid conflicting representations” and that “trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel.” Id. at 346-47. “Absent special circumstances, therefore, trial courts may assume . . . that the lawyer and his clients knowingly accept such risk of conflict as may exist.” Id. at 347. Here, therefore, the trial court was entitled to defer to Miranda’s unequivocal and unchallenged representation that defendant was aware of Florio’s conflict and had knowingly accepted its risks. Moreover, the trial judge did not rely exclusively on Miranda’s representation that defendant wished to proceed with Florio as co-counsel. Indeed, the court obtained defendant’s personal assurance, on the second day of trial, that he wanted Florio to proceed as co-counsel on the case. In that regard, on January 30, the court questioned defendant about Florio’s “pending matter,” noting that Miranda “tells me she’s discussed [it] with you” (A520). Observing that the charge against Florio was “serious” and that she could potentially lose her law license, the court asked defendant whether he still “wish[ed] to proceed with her” (A521). Defendant replied, unequivocally, that he would “love to” continue with Florio as co-counsel and added his unwavering view that “she has not compromised this case on account of her own” (A521). -69- Thus, in addition to the pretrial assurance provided by defendant’s un- conflicted lead counsel, the court obtained defendant’s personal assurance that he wanted Florio to remain on his defense team and that her pending case had not affected her representation of him. Defendant’s unequivocal, personal assurance alleviated any doubt that he wished to proceed with Florio as co-counsel. Contrary to defendant’s current assertion (DB: 24), it made no difference that Florio was not present in court for this colloquy, because Miranda was present in court and fully protected defendant’s interests.59 Significantly, defendant exhibited no difficulty in understanding the significance of Florio’s pending criminal charge, a circumstance in keeping with his status as an intelligent, sophisticated litigant. He attended preparatory school and college on scholarships; he wrote poems and short stories, some of which he published; he spent a year in London studying drama; and he earned a bachelor’s degree in fine arts (Cortez: A1750-56, A1760-63). Surely, then, defendant understood the consequences of his choice. See Gomberg, 38 N.Y.2d at 315 (noting, in finding trial court’s inquiry 59 Citing Campbell v. Rice, 302 F.3d 892, 897 (9th Cir. 2002), defendant asserts that the court had a duty to question Florio about whether she could effectively engage in plea bargaining with the prosecutor in light of her pending case (see DB: 24 n. 9). Defendant’s reliance on Campbell, however, is misplaced, as the Ninth Circuit subsequently vacated the panel decision en banc and replaced it with an opinion that did not mention any such duty to inquire. See Campbell v. Rice, 408 F.3d 1166, 1170 (9th Cir. 2005) (en banc). In any event, unlike the defendant in Campbell, defendant had two attorneys here, and his lead counsel was un-conflicted. Of course, no conflict prevented Miranda from engaging in plea bargaining on defendant’s behalf. Moreover, no New York case requires the trial judge to question the attorney so long as the defendant is aware of the conflict and knowingly waives it. -70- sufficient, that defendants were “intelligent and perceptive businessmen”). Indeed, even for a less sophisticated litigant, the potential conflict faced by Florio was easy to comprehend. See United States v. Lowry, 971 F.2d 55, 62 (7th Cir. 1992) (“the potential conflict arising from the [criminal] investigation [of defense counsel] was not difficult to appreciate”). Importantly, too, defendant never once complained at trial about Florio’s conflict or the quality of her representation. See Gomberg, 38 N.Y.2d at 315 (noting that defendants “never complained” about counsel’s representation at trial). For those reasons, the court had no duty to explain in more detail the “particular conflict’s dangers” (see DB: 26-35). The potential “danger” was readily apparent to any litigant, and certainly to a sophisticated one: an attorney facing a criminal charge might present a less vigorous defense in an attempt to curry favor with the prosecutor. Indeed, the court expressly warned of that potential risk, admonishing defendant that Florio’s pending case could pose a conflict if she were “more interested in her own matter than yours” (A520). That warning satisfied the court’s duty.60 Moreover, the record unequivocally demonstrates that defendant understood the potential risk posed by Florio’s pending case and made a knowing, intelligent 60 Nor was the court required to elicit a “narrative” from defendant that he “understood both the ‘details’ of Florio’s ‘conflict’ and the ‘perils’ of representation by a lawyer being prosecuted by the same district attorney” (DB: 40). As explained exhaustively above, the record reveals that defendant understood the conflict and wished to proceed with Florio as co-counsel. No further catechism was required. See Lloyd, 51 N.Y.2d at 112. -71- decision to retain her anyway. Indeed, when the court questioned defendant about Florio’s pending case, he responded, in no uncertain terms, that Florio “has not compromised this case on account of her own” (A521). Notably, too, defendant took the potential conflict into account when he appointed Miranda, not Florio, to act as lead counsel. This arrangement ensured that an un-conflicted attorney, Miranda, was ultimately responsible for the conduct of the defense. Therefore, defendant’s citations to cases holding that a defendant must be apprised specifically of the potential dangers of a conflict (see DB: 26-30) are inapposite. Defendant was well aware of the potential risks and affirmed, without reservation, that Florio’s pending case had not impeded her defense of him. Contrary to defendant’s claim, the court did not minimize the potential conflict by remarking that Florio could “lose her license to practice law” as a result of her “serious” pending case (A521; see DB: 31). After all, the court’s statement was true. Moreover, this fact was important, because it explained to defendant why an attorney facing a criminal charge might neglect a client in favor of his or her own interests. Nor did the court throw “cold water on the conflict’s significance” by remarking that Florio “might, for some reason, be more interested in her own matter than [defendant’s]” (A520; see DB: 31). Once again, the court’s comment was undeniably correct; defendant does not deny that it was literally true. And, even if one could interpret the judge’s wording to imply that Florio was not likely to compromise her representation of defendant, the judge was merely offering her own real-world -72- experience. Significantly, the court specifically apprised defendant that it was his view that mattered (see A521). Nevertheless, relying on cases from other jurisdictions, defendant asserts that the court’s inquiry was lacking. For instance, defendant asserts that the trial court did not afford him sufficient “time to digest and contemplate” the risks of the conflict (DB: 35, quoting United States v. Curcio, 680 F.2d 881, 889-90 [2d Cir. 1982]). But as explained, this Court’s precedents require only a “sufficient,” “reasonable” inquiry; there is no requirement that the defendant be given any particular period of time to “digest and contemplate” the risks. Moreover, defendant had ample time to consider the conflict. After all, the court first addressed defendant and Miranda about Florio’s pending case on January 25 -- four days prior to trial. As discussed, Miranda affirmed that she had already discussed the matter with defendant and that he had made a decision to retain Florio as co-counsel. Defendant then had four additional days to contemplate the matter prior to the commencement of trial on January 29. On January 30, defendant avowed that he preferred that Florio continue to represent him. Defendant, therefore, made a well-thought-out decision. Defendant also asserts that the court did not encourage him to discuss Florio’s conflict with outside counsel, appoint an “independent lawyer” for that purpose, or inform him of his right to the “appointment of conflict-free counsel” (DB: 35-36). But these arguments are frivolous in light of the fact that defendant’s lead attorney, Miranda, was conflict-free. Simply put, defendant had no reason to consult with an -73- outside attorney, because his primary attorney was well qualified to provide advice about the conflict posed by Florio’s pending case. In addition, this Court has previously held that, so long as the trial court conducts a sufficient inquiry to ensure that the defendant’s choice of counsel is voluntary, it need not advise him of his right to consult with an independent attorney. See Caban, 70 N.Y.2d at 697 (“there is no per se rule requiring consultation with independent counsel”); see also Lowry, 971 F.2d at 62 (holding that trial court was not required to advise defendant of the right to consult with “outside counsel”). Defendant’s reliance on People v. Carncross, 14 N.Y.3d 319, supra, is misplaced (see DB: 35 n. 18). In that case, the trial court disqualified the defendant’s attorney, because he represented two potential prosecution witnesses and thus suffered from an unwaivable conflict of interest. See id. at 326-29. Although, in that case, the trial court appointed an independent attorney to consult with the defendant about the conflict, see id. at 327, this Court did not hold that an independent counsel must be appointed whenever a conflict arises. Indeed, in Caban, this Court made clear that such a procedure is not required. Defendant is also wrong to complain that the court “cut him off” when he “attempted to articulate his ‘understand[ing]’” in detail (DB: 40; see A520). Indeed, the record does not reveal that the court “cut off” defendant. Instead, after defendant affirmed that Florio had not “compromised this case on account of her own,” the court merely remarked that it did not “need [defendant] to describe” the details -74- (A521). The court had good reason for making that statement. As discussed above, a trial court “must be careful not to pursue its inquiry too far” in order to avoid “interfer[ing] with the attorney-client relationship.” Gomberg, 38 N.Y.2d at 313. In other words, while the court should ensure that the defendant has made a knowing and voluntary decision to proceed with his chosen counsel, it should not engage in a discussion that might cause confidential communications to be revealed. Here, in accordance with that rule, the trial court made sure that defendant understood the conflict but avoided inquiry into the details of defendant’s decisionmaking process, which might have led to the revelation of his confidential communications with counsel. In short, the trial court properly exercised its “broad discretion,” see Carncross, 14 N.Y.3d at 330, by permitting defendant to proceed with the full legal team he desired, which included his un-conflicted lead counsel (Miranda) as well as co-counsel Florio. The record clearly reveals that he made an “informed” choice. Gomberg, 38 N.Y.2d at 313. And, by making a knowing and voluntary choice to retain Florio as co-counsel despite her pending case, defendant has waived any right to complain on appeal about her alleged conflict. See Ortiz, 49 N.Y.2d at 719; Gomberg, 38 N.Y.2d at 315.61 61 Defendant also complains, in a footnote, that the trial court permitted Florio to participate in the pretrial suppression hearing “without soliciting or securing any waiver at all” (DB: 23). However, defendant does not challenge the suppression ruling on appeal, nor (Continued…) -75- C. Contrary to defendant’s argument, even if there were some arguable deficiency in the trial court’s inquiry, automatic reversal is not required. As demonstrated, defendant made a knowing and voluntary decision to retain Florio as co-counsel, and the trial court’s inquiry ensured that defendant made an informed choice. This Court’s review should end there. But even if there were some arguable deficiency in the court’s colloquy, defendant is wrong to suggest that automatic reversal would be warranted (see DB: 43-45). Simply put, it is well settled that only a potential conflict of interest arises where a defense attorney is facing a criminal charge unrelated to the defendant’s own crimes. And where, as here, the alleged conflict of interest is merely “potential,” a defendant’s conviction should not be disturbed unless the conflict operated on the defense. Indeed, People v. Konstantinides, 14 N.Y.3d 1, supra, controls the outcome of this case. In Konstantinides, the prosecutor alleged that one of the defendant’s two attorneys (“attorney number two”) had attempted to suborn perjury and to bribe a witness in the case at bar. See id. at 6-8. The trial judge did not elicit a conflict waiver from the defendant on the record, see id. at 8, and attorney number two actively ______________________ (…Continued) does he argue that his attorneys failed to make any meritorious suppression claims. Therefore, his current argument about the suppression hearing presents a moot point. In any event, as discussed, the subsequent in-court colloquies revealed that defendant was aware of Florio’s pending case and wanted her to remain as co-counsel. Notably, too, Miranda acted as defendant’s lead counsel during the suppression proceedings and was present at all times to ensure that defendant received effective representation. -76- participated in the trial, conducting the direct examination of defendant at trial and representing him at sentencing. See id. at 8-10. Nevertheless, this Court affirmed the defendant’s conviction, holding that the allegations of perjury and bribery created only a “potential conflict of interest,” see Konstantinides, 14 N.Y.3d at 10-11, and finding no record evidence that the potential conflict “operated on the defense,” see id. at 10-14. This Court observed that the “defendant was not on trial for witness tampering, or bribery, or suborning of perjury,” and explained that an automatic reversal rule applies only where defense attorneys “were alleged to have committed crimes related to those for which their clients stood trial.” Id. at 13; see also People v. Townsley, 20 N.Y.3d 294, 299-300 (2012) (allegation that defendant’s attorney had suborned perjury would create “at least a potential for conflict,” but it would “not automatically require disqualification”); Solomon, 20 N.Y.3d at 98 (noting that, where there is an “accusation of wrongdoing” against defense counsel, defendant must show “that the attorney’s performance was impaired”); United States v. Balzano, 916 F.2d 1273, 1293 (7th Cir. 1990) (no “actual conflict of interest” existed where defense counsel was under criminal investigation for conduct unrelated to the charges against defendant); United States v. Aiello, 900 F.2d 528, 529-34 (2d Cir. 1990) (rejecting claim of per se ineffectiveness where defense counsel was being investigated for crimes unrelated to the charges against defendant); Goins v. Lane, 787 F.2d 248 (7th Cir. 1986) (declining to presume ineffectiveness where defense counsel had been indicted prior to defendant’s trial and eventually entered a -77- guilty plea). The same rule applies even if the defense attorney is under investigation by the same office that is prosecuting the defendant. See Armienti v. United States, 234 F.3d 820, 822-25 (2d Cir. 2000) (declining to apply automatic reversal rule where defense attorney was under investigation by the same United States Attorney’s Office that was prosecuting the defendant); Briguglio v. United States, 675 F.2d 81, 82 (3d Cir. 1982) (same).62 This Court’s decision in Konstantinides accords with the longstanding rule that a deficient conflict inquiry does not automatically create reversible error. See, e.g., People v. Smart, 96 N.Y.2d 793, 795 (2001) (affirming conviction where, although trial court failed to conduct a sufficient inquiry, defense counsel’s prior relationship with the victim did not affect the defense). Instead, this Court has long held that a defense attorney’s “potential” conflict of interest rises to the level of reversible error only if it “‘operated on the representation,’” Ennis, 11 N.Y.3d at 410 (quoting People v. Ortiz, 76 N.Y.2d 652, 657 ): that is, if it “affect[ed] the manner in which the attorney conducted the defendant’s defense” at trial, People v. Alicea, 61 N.Y.2d 23, 30 (1983); see People v. Abar, 99 N.Y.2d 406, 410-11 (2003) (declining to adopt automatic reversal rule where defense attorney had previously prosecuted defendant while working as an Assistant District Attorney). As this Court observed in Abar, it has “not reversed a 62 By contrast, a per se reversal rule might apply if the defense attorney were implicated in the defendant’s crimes. See United States v. Fulton, 5 F.3d 605, 611-12 (2d Cir. 1993); Bellamy v. Cogdell, 974 F.2d 302, 306 (2d Cir. 1992). -78- conviction” for a potential conflict of interest “absent a showing that . . . [it] operated on the defense.” Abar, 99 N.Y.2d at 411. Here, applying these well-settled standards, defendant is not entitled to automatic reversal even if the court’s conflict inquiry was somehow imperfect. As Konstantinides makes clear, co-counsel Florio’s pending case constituted only a potential conflict, since it was unrelated to defendant’s alleged crimes and thus would not necessarily would have impacted her representation of defendant. In fact, the defense attorney in Konstantinides suffered from a conflict more serious than Florio’s conflict here, since he was charged with having bribed a witness and suborned perjury in the case at bar. Still, this Court held in Konstantinides that counsel had only a “potential” conflict. Plainly, then, the conflict faced by co-counsel Florio was just “potential,” since Florio’s alleged misconduct was concededly unrelated to defendant’s case. Moreover, defendant’s request for an automatic reversal is particularly inappropriate in the case at hand, since his un-conflicted lead counsel, Miranda, was present throughout the trial to protect his interests. Similarly, in Konstantinides, the defendant’s first attorney was un-conflicted, while his second attorney was implicated in criminal activity. This Court held that, “[i]n light of the first attorney’s active participation, defendant has failed to establish that the potential conflict with the -79- second attorney operated on the defense such that he is entitled to a new trial.” Konstantinides, 14 N.Y.3d at 11-12. The same result should accrue here.63 To be sure, a deficient Gomberg inquiry might warrant reversal if an attorney’s interests are so fundamentally adverse to the defendant’s as to create an “actual,” rather than a “potential,” conflict. An “actual” conflict, however, arises only in rare circumstances, such as where an attorney simultaneously represents two clients whose interests are clearly at odds. See, e.g., People v. Solomon, 20 N.Y.3d 91, 95-98 (2012) (attorney simultaneously represented the defendant and a key prosecution witness to whom defendant had confessed); People v McDonald, 68 N.Y.2d 1, 12 (1986) (defense counsel also represented the victim); People v. Mattison, 67 N.Y.2d 462, 469-70 (1986) (defense counsel’s law partner represented cooperating co-defendant who was a “principal” prosecution witness). Here, of course, co-counsel Florio did not suffer from such a fundamental conflict. Indeed, as discussed, this Court’s decision in Konstantinides compels the conclusion that Florio’s conflict was only potential. At the very least, the existing record does not reveal that anything about Florio’s particular situation prevented her from representing defendant zealously and effectively. The record does not even 63 Similarly, in People v. Leslie, 232 A.D.2d 94, 99 (1st Dept. 1997), the Appellate Division declined to impose an automatic reversal rule where one of the defendant’s two attorneys turned out to be unlicensed, since the second, licensed attorney was “in the courtroom at all times” to “protect [defendant’s] interests.” Contrast People v. Felder, 47 N.Y.2d 287, 292-96 (1979) (automatic reversal required where the defendants were represented by a single, unlicensed practitioner “masquerading as an attorney”). -80- reveal the nature of the charge against Florio, the status of her case, or whether she had a viable defense.64 Of course, if any particular factual circumstance interfered with co-counsel Florio’s ability to represent defendant effectively, any relevant facts could have been developed by defendant at trial or in a CPL 440.10 motion, if he had brought one. The unexpanded record, as it exists, does not reveal anything about Florio’s pending case that would have caused her to “pull punches” when representing defendant. See Konstantinides, 14 N.Y.3d at 14 (rejecting defendant’s “proposed rule,” which “would require automatic reversal upon mere accusations of impropriety, whether true or false and regardless of whether the attorney’s loyalties were actually divided”); see generally People v. Spicola, 16 N.Y.3d 441, 467 (2011) (“the record is insufficient to permit our review of defendant’s claim of ineffective assistance of counsel, which he may raise in a CPL 440.10 motion”), cert. denied, 132 S. Ct. 400 (2011). Despite all this, defendant asks this Court to abandon its well-settled approach in favor of a rule requiring “automatic reversal of an ensuing conviction . . . for all plausible conflicts that a court on notice fails to examine or examines deficiently” (DB: 44-45). According to defendant, the difference between an actual and a potential conflict is “arbitrary” and turns on “obscure semantic distinctions” (DB: 43). But contrary to defendant’s contention, this Court’s longstanding precedents are 64 The case against Florio is sealed. -81- neither “arbitrary” nor unclear. As the above-cited cases demonstrate, an “actual” conflict arises where an attorney’s interests are so fundamentally at odds with the defendant’s that the representation is likely to be affected. Otherwise, the conflict is merely “potential.” That is a relatively simple rule, and lower courts have applied it without difficulty. Nonetheless, defendant asserts that in a few cases from decades ago, this Court ruled that a deficient inquiry mandates reversal not only for “actual” conflicts but also where the record reveals a “significant possibility” of a conflict (DB: 43). See People v. Monroe, 54 N.Y.2d 35, 39 (1981); People v. Crump, 53 N.Y.2d 824, 825 (1981); People v. Baffi, 49 N.Y.2d 820, 822 (1980); People v. Macerola, 47 N.Y.2d 257, 264 (1979). In those older cases, however, this Court reversed only where the facts established what would now be termed actual conflicts of interest. In Macerola, for instance, the defense attorney represented two codefendants, each of whom, in order to establish separate defenses, would have had to implicate the other in the crime. See Macelora, 47 N.Y.2d at 264-65. Thus, as this Court recently explained in Solomon, the facts of Macelora established “an actual conflict.” Solomon, 20 N.Y.3d at 96. Actual conflicts were also established in Crump and Baffi. See Crump, 53 N.Y.2d at 825 (codefendants, if represented by un-conflicted counsel, “might have attempted to show that the fruits of the crime were in the sole possession of the other”); Baffi, 49 N.Y.2d at 822 (“pronounced variations in the type and quantum of evidence against each defendant -82- suggested different theories and tactics of defense for each”).65 Likewise, in Solomon, an “actual conflict” existed: the defendant’s attorney simultaneously represented a key prosecution witness. See Solomon, 20 N.Y.3d at 96; see also People v. Wandell, 75 N.Y.2d 951 (1990) (cited by defendant) (reversal required “[u]nder the unique circumstances presented,” where defense counsel represented prosecution’s primary witness in a civil matter, and counsel “inexcusabl[y]” failed to bring the conflict to the trial court’s attention). Simply put, none of this Court’s precedents hold that a deficient inquiry requires reversal where the alleged conflict is merely potential. Even this Court’s past decisions invoking the “significant possibility” standard made clear that reversal is not warranted unless an actual conflict existed or unless the potential conflict affected (or “operated on”) the representation. See, e.g., People v. Recupero, 73 N.Y.2d 877, 879 (1988) (rejecting per se reversal rule for potential conflicts: “Our decisions make clear . . . that a significant possibility is more than a potential conflict of interest and that before relief will be accorded the conflict must do more than exist, it must have operated”) (internal quotations omitted); McDonald, 68 N.Y.2d at 9 (noting that 65 In Monroe, this Court affirmed the defendant’s conviction despite the lack of an inquiry, because a post-plea hearing established that no actual conflict was posed by defense counsel’s joint representation of codefendants. Specifically, the post-plea hearing revealed that defense counsel had “fully apprised” the defendant of his options, and the defendant was “not subjected to any undue pressures in accepting the plea bargain” as a result of the joint representation. Monroe, 54 N.Y.2d at 39. Thus, this Court found no “significant possibility” that a conflict existed. See id. -83- reversal is required only where the conflict “bears a substantial relation to the conduct of the defense”) (internal quotations omitted). As a last gasp, citing Wood v. Georgia, 450 U.S. 261 (1981), defendant argues that an automatic reversal rule previously prevailed under federal law until the Supreme Court’s decision in Mickens v. Taylor, 535 U.S. 162, 170-72 (2002) (see DB: 50-53). Defendant asks this Court to adopt the more protective standard that he believes prevailed in Wood, arguing that “New York’s right to counsel is broader than its federal counterpart” (DB: 50). But in addition to asking this Court to repudiate its own precedents, defendant misreads Wood. In that case, the petitioners alleged that their attorney at a probation revocation proceeding had “divided loyalties” and was thus burdened by conflict of interest. See Wood, 450 U.S. at 262-63. Despite the fact that the “possibility of a conflict” was apparent, the trial court conducted no inquiry of the defendants. See id. at 272. The Supreme Court remanded for an evidentiary hearing, observing that the record was insufficient to demonstrate whether the attorney’s conflict had “influenced . . . his basic strategic decisions.” Id. at 272. The Court ruled that, if the hearing revealed that an “actual conflict” existed and that there was “no valid waiver of the right to independent counsel,” the petitioners would be entitled to a new revocation hearing. Id. at 273-74. Plainly, Wood did not establish an “automatic reversal” rule for an insufficient conflict inquiry. Instead, the Court ruled that even in the absence of a sufficient inquiry, reversal would not be required absent an “actual conflict.” By contrast, the -84- mere “possibility” of a conflict would not be enough to entitle the petitioners to a new revocation hearing. See Wood, 450 U.S. at 272-74. That holding comports with the New York rule, described above, which distinguishes between “actual” and “potential” conflicts. Moreover, in Wood, the Court described an “actual” conflict as one that “influenced” defense counsel’s “basic strategic decisions.” Id. at 272. Hence, the Supreme Court established a requirement of at least some prejudice -- that the conflict affected the defense. That, indeed, was the precise rule later applied in Mickens. In fact, in Mickens, the Supreme Court made clear that it had not changed the law, explaining that Wood had not established a per se reversal rule for an inadequate inquiry. See Mickens, 535 U.S. at 170-72. Defendant’s reliance on Cuyler v. Sullivan, 446 U.S. 335 (1980), is likewise misplaced. In Cuyler, the Court declined to presume ineffectiveness where the trial court had not conducted any inquiry into an attorney’s joint representation of three codefendants. See Cuyler, 446 U.S. at 337-38, 347-48. Instead, the Court held, a defendant who raised no objection at trial to the joint representation must, to obtain relief, “demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 348. While the Court observed that a strict showing of “prejudice” is not required where “a conflict of interest actually affected the adequacy of [the defendant’s] representation,” see id. at 349-50, the defendant was still required to show an “actual” conflict that “affected” the attorney’s representation and thereby “impaired” the defense, see id. at 348-49. -85- Finally, defendant citation to United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), is plainly inapposite. In Gonzalez-Lopez, the trial court prohibited the defendant’s chosen attorney from having any contact with the defendant during the trial. By doing so, the court improperly interfered with the defendant’s right to counsel of his choice. See id. at 142-43, 146; accord Geders v. United States, 425 U.S. 80, 91-92 (1976) (trial court prohibited defendant from consulting with counsel during 17-hour recess); People v. Knowles, 88 N.Y.2d 763, 766-67 (1996) (court interfered with defendant’s trial strategy by prohibiting co-counsel from examining one of the witnesses and even from sitting at the defense table). Needless to say, the present case is far different from Gonzalez-Lopez, Geders, and Knowles. Unlike in those cases, defendant was not denied the attorney of his choosing, nor did the court prevent him from consulting with his attorney or interfere with his trial strategy. Quite to the contrary, the trial court here protected defendant’s right to retain counsel of his choice.66 66 People v. Crampe, 17 N.Y.3d 469 (2011), cert. denied, 132 S. Ct. 1776 (2012), also cited by defendant (DB: 67-68), is similarly inapposite. In Crampe, the trial judge failed to conduct a searching inquiry before permitting the defendant to proceed pro se. In a companion case, People v. Wingate, the trial judge failed to warn the defendant of the dangers and disadvantages of representing himself at the suppression hearing. This Court ordered a new trial in Crampe and a new suppression hearing in Wingate. See Crampe, 17 N.Y.3d at 482-84. Those results make sense, because a searching inquiry must always be conducted before a defendant is allowed to make the risky choice of representing himself. As explained in detail above, however, a deficient Gomberg inquiry does not automatically require reversal where a defense counsel is faced with merely a potential conflict of interest. -86- In short, as this Court held in Konstantinides, a pending, unrelated criminal charge against an attorney presents only a potential conflict of interest, not an “actual” one. Notably, too, the unexpanded record here does not reveal the nature of the pending charge against co-counsel Florio, the status of her case, or any particular reason why her pending charge would have prevented her from representing defendant effectively in this case. Certainly, then, the existing record provides no basis to conclude that co-counsel Florio’s potential conflict ripened into an actual one. Therefore, even if the trial court’s conflict inquiry was deficient, reversal is not warranted unless the conflict operated on the defense. D. The Appellate Division’s finding that co-counsel Florio’s conflict did not operate on the defense presents a mixed question of law and fact. Further, the Appellate Division’s finding was an appropriate exercise of discretion. As demonstrated, even if the trial court’s conflict inquiry was deficient, defendant is not entitled to an automatic reversal. Instead, he must show that the conflict “operated on the representation.” Konstantinides, 14 N.Y.3d at 10 (internal quotations omitted). Specifically, defendant must demonstrate that “the conduct of his defense was in fact affected by the operation of the conflict of interest.” People v. Ortiz, 76 N.Y.2d 652, 657 (1990) (internal quotations omitted); People v. Allen, 88 N.Y.2d 831, 832 (1996) (“in order to establish that reversible error occurred, -87- defendant must show that the conduct of his defense was in fact affected by the operation of the conflict of interest”) (internal quotations omitted).67 Significantly, the determination whether a conflict operated on the defense presents “a mixed question of law and fact,” and this Court may not disturb the Appellate Division’s determination unless “it lacks any record support.” Konstantinides, 14 N.Y.3d at 10 (internal quotations omitted). Further, to prove that a conflict “operated on” the defense, the defendant must do more than raise questions about his attorney’s “trial strategy.” People v. Jordan, 83 N.Y.2d 785, 787 (1994) (attorney’s failure to mention un-indicted codefendant, whom he had previously represented, in his opening statement raised “only a question of trial strategy”). That is because mere losing tactics do not constitute ineffectiveness. “Hindsight should not escalate what may have been a few tactical errors into ineffective assistance of counsel.” People v. Baldi, 54 N.Y.2d 137, 147, 151 (1981); see also People v. Satterfield, 66 N.Y.2d 796, 798-99 (1985); People v. Zaborski, 59 N.Y.2d 863, 864 (1983). To be sure, to satisfy the “operated on” standard, the defendant need not “show specific prejudice.” People v. Ortiz, 76 N.Y.2d 652, 657 (1990). Nonetheless, the defendant must demonstrate that the conflict affected the defense in a tangible way. See, e.g., id. at 658 (conflict operated on defense where counsel elicited false 67 This Court has sometimes phrased the “operated on” requirement “as one that the potential conflict have borne a substantial relation to the conduct of the defense” or that “potential conflict . . . affected . . . the defense.” Ortiz, 76 N.Y.2d at 657. This Court described those wordings as “three formulations of the same principle.” Id. -88- testimony at defendant’s trial from a witness, who was a former client, in order to protect client’s confidences). The defendant bears a “heavy burden” in proving that the conflict “in fact affected” the representation. Jordan, 83 N.Y.2d at 787; accord Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (“There is a strong presumption that counsel’s performance falls within the wide range of professional assistance”) (internal citations and quotations omitted); People v. Benevento, 91 N.Y.2d 708, 712 (1998) (“it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcomings”) (internal quotations omitted). Here, the record supports the Appellate Division’s determination, on a mixed question of law and fact, that Florio’s potential conflict did not operate on the defense. Indeed, defendant admitted as much at trial. When questioned by the court about Florio’s pending case, defendant affirmed that he would “love to” proceed with his entire team intact, including co-counsel Florio, averring that Florio “ha[d] not compromised this case on account of her own” (A521). Even after his conviction, defendant did not retract those statements, nor did he make a sworn allegation that Florio’s conflict had impacted the defense. Defendant’s unqualified endorsement of Florio provides compelling evidence that her pending case was not an issue at trial. See People v. Abar, 99 N.Y. 2d 406, 410 (2003) (holding that conflict did not operate on defense where “defendant affirmatively advised the court . . . that he was satisfied with the legal services provided by his lawyer”). -89- Nonetheless, defendant asserts on appeal that Florio’s conflict operated on the defense in various ways (DB: 71-74). Initially, defendant complains that neither of his attorneys appeared for the “first three scheduled trial days” on January 22-24, 2007, leaving defendant “literally unrepresented” (DB: 71). But no prejudice flowed from defense counsel’s absence on January 22-24, as no trial proceedings occurred on those dates. Instead, the court merely adjourned the case. Moreover, counsel’s absence on those dates had nothing to do with Florio’s potential conflict. As the trial court found, counsel’s absence was a gambit orchestrated by lead counsel Miranda, not by co-counsel Florio, calculated to obtain an adjournment of the trial date. Miranda’s maneuver, which had nothing to do with Florio and which achieved its desired result, certainly does not demonstrate that co-counsel Florio’s pending case had any impact on the defense.68 Next, defendant takes issue with Florio’s cross-examination of the People’s fingerprint and footwear experts (see DB: 71-73) and criticizes Florio for failing to call 68 On appeal to this Court, defendant does not contend, as he argued to the Appellate Division, that Miranda’s contempt citation constituted a conflict of interest. Nevertheless, defendant asserts in passing that Miranda suffered from an “arguabl[e] conflict” arising from “her contempt citation for failing to appear on the scheduled trial date (DB: 37-39). But as the Appellate Division found, and as federal courts have recognized, a contempt citation does not constitute a “conflict of interest.” See United States v. Taylor, 139 F.3d 924, 930-31 (D.C. Cir. 1998); United States v. Shark, 51 F.3d 1072, 1076 (D.C. Cir. 1995); see also United States v. Herrera-Rivera, 25 F.3d 491, 496 (7th Cir. 1994). In fact, as noted, Miranda’s contempt citation arguably aided the defense by giving her an extra week to prepare. Miranda’s willingness to manipulate the scheduling of the trial for her own convenience, and ultimately for defendant’s benefit, certainly did not create a conflict between her own interests and defendant’s. -90- her own experts to testify about the fingerprint and hair evidence (DB: 72-73). But once again, defendant’s lead counsel, Miranda, was un-conflicted and presumably made the final decisions regarding how to handle all of these strategic matters. Certainly, the record provides no reason to believe that Florio made any strategic decisions on her own. Moreover, defendant did not bring a post-judgment motion pursuant to CPL 440.10, and thus his attorneys have not been afforded an opportunity to explain their strategic choices. Accordingly, defendant’s complaints about counsel’s strategy are not reviewable on the current record. See, e.g., People v. Becoats, 17 N.Y.3d 643, 653 (2011) (noting that CPL 440.10 proceeding would be required to determine whether defendant was “prejudiced by his counsel’s inaction”); People v. Rivera, 71 N.Y.2d 705, 710 (1988) (Where defendant failed to bring CPL 440.10 motion, “this court is asked to decide the claims of ineffective assistance of counsel by resorting to supposition and conjecture rather than a thorough evaluation of each claim based on a complete record”); People v. Love, 57 N.Y.2d 998, 1000 (1982) (same). In any event, the existing record provides no grounds to question Florio’s performance at all. For instance, defendant contends that Florio “bungled” her cross- examination of the People’s crime scene and forensic experts (Detective John Entenmann and Criminalist Alex Chacko) regarding the bloody fingerprint recovered from the bedroom wall. According to defendant, counsel damaged defendant’s cause by eliciting that the fingerprint could have been a “patent” print made in blood at the -91- time of the murder, rather than a “latent” print that “could have been left at any time” (DB: 71-72). Contrary to defendant’s newfound assertion, however, Florio did not “blunder” in her questioning. Instead, she merely elicited the obvious facts. Indeed, the fingerprint evidence could not have been clearer. Entenmann testified both on direct and on cross-examination that, when he inspected the crime scene, he saw a bloody hand print (or “hand transfer pattern”) on the wall (Entenmann: A542-49, A637-39, A655, A660). The hand print was “patent,” or visible to the naked eye (Entenmann: A616-26, A641-43, A645-46, A654, A662-63), and DNA analysis proved that the hand print was made in Catherine’s blood (Schlesser-Perry: A907, A926, A930-34, A936-44, A964). Thus, when Florio elicited on cross-examination that the large, bloody hand print on the wall was visible to the naked eye and thus “patent” (DB: 71-72; see Entenmann: A642-48), she did not break any new ground. She merely had the witness repeat the undisputed fact that the hand print was visible to the naked eye. By contrast, a chemical process was required to reveal defendant’s fingerprint within the hand transfer pattern, making it a “latent” fingerprint (see Chacko: A685). Florio skillfully focused on this distinction, making clear to the jury that the fingerprint itself was “latent.” In that regard, on cross-examination, Florio elicited that Chacko could not see any fingerprints on the sheet rock when he received the cutout of the wall (see Chacko: A707). Thus, she elicited that while the hand transfer pattern was visible to the naked eye, the fingerprint was not. And, Florio elicited -92- from Entenmann that latent prints “can last a long time” and cannot be conclusively dated (see Entenmann: A647). Florio elicited, too, that the chemical used to reveal the print (amido black) reacted with a protein present in blood, rather than with blood itself (see Chacko: A706-11), and that Chacko did not test the fingerprint itself for blood (see Chacko: A712).69 Consistent with that theme, Miranda argued in summation that the fingerprint was latent and could have been on the wall before the murder (see Summation: A2181-83). To be sure, counsel’s argument was a hard sell, as the fingerprint provided compelling evidence of defendant’s guilt. The fingerprint was found in a finger-sized smudge at the upper right hand corner of the hand transfer pattern -- precisely where the killer’s left index finger touched the wall. The fingerprint was matched, with 100% certainty, to defendant’s left index finger. The chemical used to process the print, amido black, turned the fingerprint blackish-purple, indicating that the print was made in blood. And, DNA testing of the smudge revealed that the blood was Catherine’s. The obvious conclusion, therefore, is that defendant touched the bedroom wall during the crime and left his fingerprint in Catherine’s blood. It would be a remarkable coincidence if both defendant’s and the murderer’s left index fingers just happened to touch the same spot on the wall at different times. And it would be 69 A DNA test was performed on a blood sample taken from an area immediately above the fingerprint (Schlesser-Perry: A934-35). -93- even more remarkable if defendant’s older latent print survived intact after the murderer left a bloody impression on that same spot. Still, aided by Florio’s cross-examination, Miranda made the best summation argument possible under the circumstances, trying to convince the jury -- against all odds -- that the latent print might have been on the wall prior to the murder and that the chemical might have reacted with something other than blood (see Summation: A2182-83). Counsel even elicited defendant’s remarkable testimony that he might have left a bloody fingerprint on Catherine’s wall after touching her menstrual blood on an earlier occasion. Of course, these attempts to contradict the fingerprint evidence were far-fetched. But it was not defense counsel’s fault that the fingerprint conclusively linked defendant to the murder. Far from performing deficiently, Florio and Miranda made valiant efforts to attack the People’s fingerprint evidence and tried their best to poke holes in an overwhelming case. Defendant also argues that his attorneys should have called their own fingerprint expert to counter the People’s experts (DB: 72). But this argument rests entirely on speculation, as no record evidence establishes that another fingerprint expert would have added anything at all, much less anything favorable to the defense. At the very least, the unexpanded record is insufficient to demonstrate that another expert would have aided the defense. Next, in another attempt to blame his conviction not on the evidence but on his attorneys, defendant faults Florio for the strength of the footprint evidence. He -94- claims that, on cross-examination of the People’s footwear impression expert (William Bodziak), Florio elicited damaging, new testimony that the bloody boot prints on Catherine’s bed sheets matched the outsole design of Cool Cat Bully Two boots -- the same type of boot that Spenser Lebowitz saw defendant wearing after the murder (see DB: 73). But contrary to defendant’s argument, Florio elicited nothing new. In his direct testimony, Bodziak had already identified the bloody shoe prints as matching the outsoles of Skechers Cool Cat Bully Two boots (Bodziak: A978-79). Bodziak testified on direct examination that the bloody boot prints were made by size 10 ½ or 11 Skechers boots, and that the best fit was size 10 ½ (Bodziak: A978-79, A981-90). Lebowitz subsequently identified the exact style of Skechers boots that defendant was wearing on the evening of the murder, and a Skechers representative testified that those boots had the same outsole design as the Cool Cat Bully Two (Tramuto: A1170- 72; Lebowitz: A1595-96). In addition, Bodziak measured defendant’s feet and determined that his shoe size was 10 ½ (Bodziak: A991, A995-97, A1002). The evidence presented on People’s direct case, therefore, matched the bloody boot prints to the shoes that defendant was seen wearing on the night of the crime. In response, Florio reasonably pressed Bodziak on whether he was sure that the prints were made by size 10 ½ boot and also elicited that 10 ½ was a “very common size” (see Bodziak: A1018-20). Seizing on that cross-examination, Miranda argued in summation that 10 ½ was a popular size and chastised Bodziak for not asking defendant to try on a pair of Skechers boots (see Summation: A2184). In addition, -95- Florio elicited on cross-examination that Haughn also wore size 10 ½ shoes (see Haughn: A1153). Florio and Miranda thus tried valiantly to extract a reasonable doubt from the compelling evidence, and it was not their fault that the boot prints corroborated the wealth of other evidence establishing defendant’s guilt. Finally, defendant argues that Florio should have presented expert testimony that some of the hairs recovered from Catherine’s body were similar to Haughn’s and might have linked him to the crime (DB: 72-73). But this claim too is entirely speculative, as the record does not demonstrate that calling an additional hair expert would have helped the defense. Indeed, as counsel surely realized, the hairs were a non-issue. The People’s hair and fiber expert testified that nearly all the hairs recovered from Catherine’s hands and body were her own (see Wade-Allison: A1344, A1355-58, A1362-64, A1369-70, A1372-74). That evidence showed, simply, that Catherine’s own hairs, which were naturally present on the bedroom floor, adhered to her hands and body when she collapsed, face down, in a pool of blood. The hairs said nothing about the identity of her killer. To be sure, three strands of hair were recovered that did not appear to be Catherine’s: two light-brown strands recovered from her clothing and one grey strand recovered from her hands (see Wade-Allison: A1357-58, A1362-64, A1372-74). But contrary to defendant’s insinuation (DB: 72), those hairs could not have linked Haughn to the crime. After all, Haughn had blond hair (Goetz: A1496), and none of -96- those three hairs was blond.70 Moreover, defense counsel made much of those three hairs in summation, arguing that because the People had not preformed DNA testing of them, they might have belonged to the killer (Summation: A2135, A2180-81). Defense counsel thus had a strategic reason not to seek further testing of the hairs or to call her own hair expert. Simply put, defense counsel preferred not to know more about the genesis of the hairs, so she could argue in summation that the three strands of hair created a reasonable doubt.71 Notably, too, defendant’s repeated attempts to point the finger at Haughn are frivolous. Haughn cooperated fully with the police, and detectives verified all of his statements. Indeed, Haughn called 911 immediately after discovering Catherine’s body and was in shock when the police and paramedics arrived. Tellingly, Haughn left his car parked illegally in front of a fire hydrant near the corner of 86th Street and First Avenue -- confirming his account that he had been waiting to drive Catherine to work. The location of the car also corroborated Haughn’s testimony that he went inside the building only after Catherine failed to come downstairs. Further, Haughn endured hours of accusatory questioning by the police without complaint and 70 In any event, Haughn lived in the apartment, so obviously his hair would have been on the bed and on the floor. 71 Similarly, the record refutes defendant’s appellate contention that his attorneys were “unprepared” for trial (see DB: 71). As the court observed at sentencing, counsel had ample time to prepare for trial and had received the discovery materials and expert reports “in advance” (see PA 72-73 [Sentencing Tr.]). The court declared that “counsel was indeed prepared to cross-examine those [expert] witnesses” (PA 74). -97- declined multiple offers for attorneys to represent him. And, no evidence demonstrated that Haughn harbored animosity toward Catherine, much less the intense rage required to commit the brutal murder. By contrast, defendant had a clear motive to kill Catherine, as he was distraught over their breakup. He expressed his rage against Catherine in his journal entries, which included graphic references to slitting her throat. He also called her incessantly after she ended their relationship -- 292 times in one month alone. Moreover, cell site records tracked defendant’s movements to Catherine’s apartment before the murder and his return home afterwards. Defendant called Catherine several times right before the murder, undoubtedly to make sure that she was at home. And tellingly, his incessant calls to her stopped abruptly after the murder, obviously because he knew she was dead. Significantly, too, defendant skipped band practice on the evening of the murder and lied about the reason, claiming falsely that he had been asleep. He then desperately tried to establish an alibi, asking a friend to watch football and pretending to be upset about the Giants’ loss. Further, Jacques Szwarcbart, a resident of defendant’s building, subsequently saw defendant discarding garbage early in the morning, wearing only his boxer shorts despite the cold. It is a fair inference that defendant was discarding his bloody clothing and telltale boots, and that defendant was barely dressed to ensure that the -98- blood did not get onto any of his other clothes.72 The morning after the murder, defendant uncharacteristically arrived late for work and bemoaned the results of the previous day’s football games, again displaying an intense interest in football that he had not shown before. Undoubtedly, defendant’s tardiness demonstrated his continued preoccupation with the previous night’s events, and his unusual focus on football reflected yet another attempt to create an alibi. Then, when questioned by the police, defendant omitted critical facts, including the fact that he went to Catherine’s neighborhood on the evening of the murder. These telltale facts, combined with the compelling fingerprint and boot print evidence, as well as the conclusive proof of motive, left no doubt about defendant’s guilt. In short, despite the overwhelming evidence of defendant’s guilt, Miranda and Florio presented a vigorous defense. Counsel painted a sympathetic picture of defendant in their opening statement, extensively cross-examined the People’s witnesses, and presented a multi-faceted defense case, including defendant’s testimony and the testimony of numerous character witnesses. Miranda delivered a spirited summation, disputing every aspect of the People’s case and arguing that defendant was wrongly accused. Defendant could not have asked for a more committed team of advocates, and he never complained at trial about their performance. His current 72 Notably, when defendant spoke to the police the day after the murder, he was wearing Johnston & Murphy dress shoes -- an unusual choice to wear with his blue jeans. -99- argument that Florio’s potential conflict of interest affected the defense is, therefore, entirely without merit. * * * In sum, defendant knowingly and voluntarily chose to proceed with Florio as co-counsel despite her pending case. Because he waived the conflict at trial, defendant may not now complain about it on appeal. In any event, even if the waiver were deficient, automatic reversal is not required, since Florio’s pending case posed only a potential conflict. Further, the existing record does not demonstrate that the potential conflict operated on the defense. Accordingly, defendant’s conviction should not be disturbed on this ground. -100- POINT II DEFENDANT’S CURRENT CHALLENGES TO THE ADMISSION OF SELECTED EXCERPTS FROM HIS JOURNALS ARE PARTIALLY, IF NOT LARGELY, UNPRESERVED. FURTHER, THE TRIAL COURT’S EVIDENTIARY RULING WAS NOT AN ABUSE OF DISCRETION (Answering Defendant’s Brief, Point III). The defense strategy at trial was unwavering: defendant sought to portray himself as a peaceful, non-violent, artistic, thoughtful man who liked to write, sing, and dance, who loved Catherine dearly, and who was incapable of violence, much less murder. Defendant’s private journals, however, told a different story. In those journals, defendant described his violent thoughts and intense anger when his romantic relationships ended in failure. The journals contained numerous references to death and displayed a particular infatuation with knives and cut throats, including one entry where a woman from the Midwest had her throat cut. Catherine, of course, was from the Midwest. At trial, to show defendant’s motive and state of mind, the People introduced his writings about Catherine as well as selected entries about two other women: Barbara (“Boo”) Killebrew and Amanda Sywak. Defendant conceded at trial that his writings about Catherine were relevant and admissible. Regarding the other entries, defendant argued generally that they constituted “Molineux” or “propensity” evidence and that their probative value was outweighed by the potential for undue prejudice. Although the trial judge invited defendant to point to case law holding that his -101- recorded thoughts should be analyzed under the Molineux framework reserved for bad acts, he provided none. When the prosecutor argued in summation that the journal entries demonstrated defendant’s progressive rage and explained why he killed Catherine in such a brutal fashion, defense counsel either failed to object or offered only unelaborated objections. On appeal, defendant renews his general arguments that the challenged journal entries about Boo and Amanda constituted “propensity” evidence and were unduly prejudicial (see DB: 85-95, 120-25). In addition, in an attempt to bolster his claims for appeal, defendant raises a bevy of new -- and therefore unpreserved -- appellate contentions. For instance, despite his arguments to the jury that he never harbored an ill thought about Catherine, defendant asserts now, for the first time, that his state of mind and motive to commit the murder were not in dispute (DB: 95-98). Defendant contends further, despite the lack of any such argument below, that the journal entries should not have been admitted without foundational testimony explaining their relevance (see DB: 111-20). Defendant also, for the first time on appeal, describes the journal entries as impermissible “character” evidence (DB: 3, 89, 93, 128, 132, 134). And, despite his lack of specific objections at trial, defendant complains at length about the prosecutor’s arguments to the jury regarding the journals’ relevance (see DB: 78-82, 130-32). Defendant’s newfound claims are unpreserved, and all of his arguments lack merit. -102- A. The Relevant Record 1. The Journal Excerpts Introduced on the People’s Direct Case a. The Trial Court’s Evidentiary Ruling At the outset of the trial, the prosecutor argued that defendant’s journal entries would “reveal” his “growing frustration, rage, anger and ultimately . . . his motive for murdering Catherine all in his own words” (Opening: A301). Defendant did not dispute at trial, nor does he dispute on appeal, that his journal entries relating to Catherine were relevant and admissible to prove his motive and state of mind (see DB: 75).73 In addition to those undisputedly admissible entries, the trial prosecutor sought to introduce selections from defendant’s journals relating to his unsuccessful relationships with two other women, Barbara “Boo” Killebrew and Amanda Sywak (see A524-26). The prosecutor argued that defendant’s writings about his broken love affairs demonstrated how he became “increasingly more hostile” to the women and provided a “relevant connection to what happened to Catherine” (A526). The prosecutor explained that the “progression of defendant’s thinking” provided “the only context in which we can understand what happened here” (A526). “In a vacuum,” the prosecutor noted, “I don’t think we can say simply breaking up with 73 At trial, defense counsel initially opposed the admission of all the proffered journal entries but subsequently dropped any objection to the entries that mentioned Catherine by name (A522-23). The court observed that, in addition to the entries that named Catherine, it was “fairly clear” that other entries from the “pertinent time period” also related to Catherine and thus were plainly admissible (A522-23). On appeal, defendant does not contest the admission of any entries relating to his relationship with Catherine. -103- Catherine Woods would lead the defendant to kill her in a horrible manner” (A526). The prosecutor noted, too, that the entries merely demonstrated the “evolution” of defendant’s “state of mind” and did not describe any crimes or bad acts (A527). Defense counsel acknowledged that the journals “were just a description of [defendant’s] emotions” (A527-28). Still, counsel argued, their admission “would prejudice him because it would make a jury believe that he has these tendencies, this propensity to commit such a violent crime” (A528). In addition, defense counsel contended that this evidence would “place a burden” on defendant “to explain that he did not act violently” (A527). Counsel noted that “no violent behavior followed” his entries about Boo and Amanda (A528). Counsel argued, too, that the jury would “speculate that . . . he may have or that he did in this instance because he wasn’t satisfied in the other instances that he wasn’t able to or did not commit the violent acts” (A528). In response to a suggestion by the court, the prosecutor offered to stipulate that “defendant committed no violence” against either Boo or Amanda (A529). Defense counsel raised no further argument at that time (see A529). Defense counsel subsequently revisited the issue, invoking Molineux but acknowledging that the journal entries “seem[ed] more like criminal thoughts than bad acts” (A745). The court stated that “I don’t quite see them as bad acts,” noting that it was “not aware of any case law” treating expressions of thoughts as criminal or bad -104- acts (A745). The court invited counsel to “educate me about this sort of thing being a Molineux position” (A745-46).74 When defense counsel asked the court to identify the grounds on which it was admitting the journal entries, the court replied that they indicated “a reflection of a growing kind of state of mind” (A746). Counsel again argued that the entries showed defendant’s “propensity to commit an act because he continues to think about it” and argued that their probative value would not outweigh the “prejudice” even if “the People stipulate that he didn’t engage in any violence” (A747). The court reiterated that the entries did not show “propensity to commit a crime,” adding, “I don’t see it as fitting into Molineux” (A747). Still, the court offered to “take a look at” any “case law” that suggested otherwise (A747). In response, counsel merely said, “thank you” (A748). The record does not reveal that defense counsel provided case law to support her Molineux argument. b. The Journal Excerpts The People introduced several excerpts from defendant’s private journals about his relationships with “Boo” Killebrew and Amanda Sywak. For instance, in December 1999, defendant wrote that he was madly in love with “Boo,” even though 74 Defendant also argued that “the People [had] failed to make a Molineux application to the Court” (A745). In response, the court pointed out that “the People have long indicated their intention to put in the journals” (A746). On appeal, defendant does not contend that the People failed to provide sufficient notice of their intention to introduce the journal excerpts. -105- they were just friends and she had a boyfriend (see Goetz: A1461-63). In March 2000, defendant wrote that he was “so unhappy without” Boo and that a “beast of burden” lay “chained in the cage of my mind” (Goetz: A1464). In the next excerpt, defendant urged himself to “[s]top thinking about Boo,” describing her as “poisonous” and “dangerous” (Goetz: A1465). Defendant wrote that he would not be the “victim” or the “martyr anymore” (Goetz: A1466). On May 18, 2000, defendant drew a picture of a man with a sword and wrote a poem containing allusions to a knife touching the skin (Goetz: A1466). Next, in an entry dated October 4, 2001, defendant lamented his breakup with Amanda, writing that thinking about her caused him “pain” (Goetz: A1467-68). He described Amanda as a “sly whore” who was “fucking around” with other men (Goetz: A1469). In entries from 2002, defendant expressed “pent up rage” that Amanda was sleeping with another man, but defendant was “unable to kill” and “unable to find retribution” (Goetz: A1469). Defendant wrote that women were “still laughing at me, saying how much of an asshole I am, forgetting me and how much I loved them” (Goetz: A1470). Defendant described himself as a “monster” who “can’t forget,” adding the he “[d]well[ed]” on “thoughts of revenge” (Goetz: A1470). He “pray[ed] to God to relieve me of this” and to help him “forgive” (Goetz: A1470). On February 13, 2004, defendant drew a picture of a person with a knife in her back ( see A1470-71). -106- The parties stipulated at trial that defendant did not commit any acts of violence against either Boo or Amanda (A1584; PA 19-20 [stipulations]). In addition, the People introduced excerpts from defendant’s journal entries about Catherine.75 For example, on December 1, 2004, shortly after defendant began his relationship with Catherine, he wrote a poem about wandering through the “gardens of Kamala.” The poem described a “shaft” cutting the throat of a woman from the Midwest (Goetz: A1471-72). On March 20, 2005, around the time that defendant called Catherine’s father and claimed to have rescued her from a situation at work after she had blacked out, defendant wrote that he had “saved” Catherine “from rape” (Goetz: A1473). Nevertheless, he penned, Catherine continued “stripping for money” and “thought I betrayed her when I told her father of her nighttime secret life” (Goetz: A1473). Defendant lamented that he “could not keep her close”; he would “wake with sadness in my heart every day for the loss of Catherine Woods” (Goetz: A1473-74). Defendant questioned whether he could trust Catherine and observed that he was “so fearful of rejection that I sabotage all love so that I know when the end will be” (Goetz: A1474). In another entry titled “Beautiful Catherine,” which was written as a letter to Catherine, defendant bemoaned Catherine’s “erotic subjugation to lusty men” (Goetz: 75 Because, on appeal, defendant does not challenge the admission of his entries about Catherine (DB: 75), they are summarized only briefly here. Those entries are described in more detail in The Evidence at Trial, supra. -107- A1475). Defendant urged Catherine to “quit the industry of selling skin” and “quit being treated like a whore” (Goetz: A1475). Defendant wrote that he had “endured so much anger, frustration and jealousy which I normally would not put up with” (Goetz: A1476). He pleaded with Catherine to “quit the sex for money life for good as well as your ex,” and asked her to choose “true love over money and comfortability” (Goetz: A1477). In the entry immediately following, defendant wrote that Catherine had lied to him and had been sleeping with Haughn “and the others the entire time she told me how she was true and in love with me” (Goetz: A1477). On October 12, 2005, around the time that defendant and Catherine broke up, defendant penned “The Killin’ Machine,” which described a woman being “violated” and “rip[ped] apart” by a “gang of lunatics” (Goetz: A1478-79). In the next entry, defendant referenced “the electric chair” and wrote that he “never wanted [f]or you to die” (Goetz: A1480). Defendant continued that the woman was bound for “hell,” while he landed in a prison cell (see Goetz: A1480-81). 2. Defendant’s Trial Testimony and Character Witnesses As noted, defendant’s strategy at trial, from opening to closing, was to establish that he was an introspective, peaceful artist who could never have killed Catherine, the woman he loved. In fact, in his trial testimony, defendant repeatedly averred that he had no intention of harming anyone, including Catherine (see, e.g., Cortez: A1766, A1775-76, A1874, A2052-53), and offered explanations for his journal entries. For instance, defendant described his violent writings about Amanda as an attempt to -108- “delve into” emotions when auditioning for the role of Mozart in a play (Cortez: A1786-88). He testified that his references to “skin versus blade” and “knife versus vein” concerned suicide (Cortez: A2054-55) and that his desire not to be “victim” or a “martyr” referred to relationships in general and was intended as empowering (Cortez: A2011-12). Defendant added that his drawing of what appeared to be a person with a dagger in her back was in fact a depiction of a surgical procedure involving Julius Caesar, inspired by a hernia operation that defendant had undergone (Cortez: A1777- 78, A2053). Defendant described his drawings of people with knives as merely “doodles” of comic book characters (Cortez: A1756, A1775-78, A2052-53). Defendant offered similarly detailed explanations for his writings about Catherine. For instance, he described “The Killin’ Machine” as a humorous song, inspired by the drummer of his band, who had remarked that women want men with larger penises (Cortez: A1895). According to defendant, the band members “crack[ed] up” talking about how the machine would “pulverize” women and “beat that pussy and all that stuff” (Cortez: A1896). In fact, defendant claimed that the woman in the song was not Catherine (Cortez: A2046), that the song -- despite its title -- was about having sex, not killing (Cortez: A2046-49), and that “gang of lunatics” referred to the band (Cortez: A1896-98).76 Defendant testified that the next entry, 76 As noted, “The Killin’ Machine” appears in an entry dated October 12, 2005 (see Goetz: A1478-79) -- around the time when defendant and Catherine broke up. -109- which referenced prison, the electric chair, and being “trapped in hell,” was written after Catherine’s death. He claimed that the poem was about being wrongfully convicted and was written in response to his interrogation by the police and newspaper articles wrongly implying that he had killed Catherine (Cortez: A1898- 1900, A2013-19). In addition, defendant testified that his reference in the “Gardens of Kamala” poem to Catherine’s throat being slit described Catherine’s rape, by her former landlord, three years earlier (Cortez: A1810, A2053-54, A2073). In response, the prosecutor cross-examined defendant about a few other journal entries in which he had expressed violent thoughts towards women. For instance, defendant acknowledged writing that he was a “misogynist” (Cortez: A2022). He also admitted to writing that he wanted to “bury every girl in the ground” but explained that he had written that line for “Hamlet” (Cortez: A2022). In addition, defendant acknowledged that he might have written, “Love hurts more than life itself,” and “Love is just pain” (Cortez: A2023-24). He admitted, too, that he might have written in a “poem” that he wanted to “fuck all these girls,” “rip their hearts,” and “turn them to stone” (Cortez: A2022). Defendant further acknowledged that he might have penned another poem expressing his desire to “to tear their cunts apart and kill that which hurts” (Cortez: A2023). Defense counsel offered only unelaborated objections to the prosecutor’s cross-examination questions about these writings (see A2022-24). -110- Building on his own testimony, defendant called a number of friends and acquaintances at trial, who testified that he had a reputation in the community for peacefulness (Acosta: A1645; Anonymous Female One: A1657, A1662; L. Danowitz: A1674; Levy: A1689; John Doe: A1695, A1698-99; J. Danowitz: A1704; Kornblum: A1722-23). In addition, one defense witness opined that defendant had a reputation for being honest and generous (Doe: A1694-95), adding that defendant practiced yoga, meditated, and studied Buddhist texts (Doe: A1695, A1701). 3. The Summations In summation, defense counsel argued that defendant was a “calm,” “peaceful,” and “soft-spoken” man (Summations: A2127, A2150). Counsel described defendant as a “gentle, caring, peaceful sole [sic]” who liked to “sing and dance” (Defense Summation: A2127). Counsel urged that defendant “loved his girlfriend, Catherine” (Summations: A2126) and was “not capable” of hurting her (Summation: A2128). Regarding the journals, counsel contended that defendant’s entries did not display “criminal thoughts” or “thoughts that he would harm anyone” (Summation: A2162). Counsel asserted that the prosecutor “exaggerate[d]” the significance of the journals (Summation: A2147). She compared this case to a “Twilight Zone” episode, where a person was arrested for “standing in front of a bank” and “thinking about robbing it” (Summation: A2162). Counsel contended that defendant had merely “expresse[d]” his feelings and was “learning how to deal with them,” whereas -111- “someone who internalizes their feelings is someone who erupts” (Summation: A2162). Counsel even used the journals to demonstrate defendant’s sensitivity, reading to the jury a love poem that he had written (see Summation: A2175-58). In the poem, defendant wrote wistfully of “[p]eace n love” and “[s]miles and faces,” visualized children “[r]unning in [h]orizons,” reflected on “[m]emories” of “true joy,” and observed that the “sea of life . . . [f]lows on like a dream” (Defense Summation: A2176). Counsel remarked further in her summation that defendant’s friends and acquaintances had described him as peaceful, noting that defendant read “spiritual texts” and followed “Buddhist principles of nonviolence” (Defense Summation: A2185-86). And, according to counsel, defendant demonstrated his emotion and sensitivity by “collaps[ing]” when he heard the news of Catherine’s death (Defense Summation: A2140). In closing, defense counsel urged the jury to acquit (Defense Summation: A2188-89), arguing that although the jurors could not “unfortunately give Catherine Woods her life back,” they could “give Paul Cortez his life back” (Defense Summation: A2188). In response, the prosecutor argued that “The Killin’ Machine,” and defendant’s other writings about Catherine, demonstrated that his thoughts about her were not “totally rosy” or “all pure” (see Summations: A2268-70). In addition, the prosecutor argued -- without objection from defense counsel -- that defendant’s failed relationships with Boo and Amanda explained his motive to kill Catherine. In -112- particular, referencing defendant’s journal entries, the prosecutor noted that defendant became “angry” after Boo “dump[ed]” him (Summations: A2276). The prosecutor described other entries where defendant expressed his desire for “retribution” after Amanda slept with one of his friends: defendant wrote that he “wanted them dead” and was “angry at himself because he can’t kill them” (Summations: A2276-77). Summarizing these journal entries, the prosecutor observed that defendant’s “attitude toward women” worsened as his failures “escalate[d]” (Summations: A2277). Then, the prosecutor argued, defendant “reached the breaking point” when Catherine chose Haughn over him (Summations: A2284). The prosecutor opined that defendant’s feelings of rejection, combined with the “previous rejections,” resulted in a “murderous rage” (Summations: A2285-86). Defense counsel raised no objection to any of these comments. 4. The Appellate Division’s Decision On appeal to the Appellate Division, defendant challenged the admission of the journal entries about Boo and Amanda, as well as the prosecutor’s summation comments about those entries, on various grounds. In particular, defendant argued that the entries constituted improper “propensity” and “character” evidence, that the entries were “remote in time” and “irrelevant to the charged offense,” and that the prosecutor acted as an “unsworn expert” by arguing that his writings demonstrated his “progressive rage,” a theory that defendant termed “junk science” (PA 79-89 [Defendant’s Appellate Division Brief, Point II]). -113- The Appellate Division rejected defendant’s claims that the journal entries about Boo and Amanda should not have been admitted. See Cortez, 85 A.D.3d at 410- 11. Initially, the Appellate Division observed that, at trial, defendant had “only argued that this [the entries] constituted evidence of uncharged crimes or bad acts.” Id. at 411. The Appellate Division found that claim “meritless, because the entries only reflected hostile thoughts.” Id. The Appellate Division added that “[d]efendant’s remaining contentions concerning this evidence are unpreserved and we decline to review them in the interest of justice.” Id. As an “alternative holding,” the Appellate Division found that “defendant’s hostility toward women, not limited to the victim, had a bearing on motive and was not unduly prejudicial.” Id. Additionally, the Appellate Division held that “any error regarding the receipt of this evidence” was “harmless in light of the overwhelming evidence of guilt.” Id. In addition, the Appellate Division found that defendant’s challenges to the prosecutor’s summation comments about the journal entries were entirely unpreserved. See Cortez, 85 A.D.3d at 411.77 “As an alternative holding,” the Appellate Division ruled that “most of the challenged remarks were generally permissible.” Id. In any event, the Appellate Division found any errors “harmless” in light of the “overwhelming evidence of defendant’s guilt.” Id. at 412. Justice Helen 77 The court noted that the only “arguably preserved” challenge to the prosecutor’s summation was defendant’s separate claim that the prosecutor “ended his summation with an improper appeal to the jury’s emotions.” Cortez, 85 A.D.3d at 411. -114- Freedman concurred in the result but opined that what she characterized as the prosecutor’s “psychological opinions” that previous rejections had caused defendant to develop a “murderous rage . . . went beyond fair comment on the evidence.” Cortez, 85 A.D.3d at 412 (Freedman, J., concurring) (internal quotations omitted). B. Defendant’s journal entries about Boo and Amanda were highly relevant to his motive and state of mind. Further, defendant’s writings did not constitute impermissible “bad acts” or “propensity” evidence. As the Appellate Division found, defendant has preserved only a single challenge to the journal entries about Boo and Amanda: that they constituted improper “propensity” or “bad acts” evidence. The trial court and the Appellate Division correctly rejected this claim. Of course, all relevant evidence is admissible in the trial judge’s discretion, unless its admission violates some exclusionary rule. People v. Scarola, 71 N.Y.2d 769, 777 (1988). Evidence is relevant “if it has any tendency in reason to prove the existence of any material fact” -- that is, if “it makes determination of the action more probable or less probable than it would be without the evidence.” Scarola, 71 N.Y.2d at 777; see also People v. Wilder, 93 N.Y.2d 352, 356-57 (1999). A trial court should not exclude relevant evidence unless its probative value is “substantially outweighed” by the danger that it will unfairly prejudice the opposing party. Scarola, 71 N.Y.2d at 777. Trial courts possess broad discretion in making evidentiary rulings, and this Court may review those determinations for abuse of discretion only. See People v. Aska, 91 -115- N.Y.2d 979, 981 (1998) (“the trial court is granted broad discretion in making evidentiary rulings”). More particularly, a defendant’s long-held animosities can provide relevant evidence of his state of mind or motive. As this Court declared more than a century ago, “‘long-continued animosity and ill-will are better evidence of a state of mind which will ripen into deliberate murder than the hasty ebullition of passion.’” People v. Decker, 157 N.Y. 186, 193 (1898) (quoting Jefferds v. People, 5 Parker’s Crim. Rep. 522 [Sup. Ct., N.Y. Co., 1862]). It has long been settled law that “[t]he motive for the commission of a homicide is always open to inquiry at the trial, and considerable latitude in the proof is always allowed.” People v. Sutherland, 8 E.H. Smith 345, 352, 48 N.E. 518, 520 (1897). For those reasons, in People v. Moore, 42 N.Y.2d 421 (1977), this Court held that a defendant’s prior writings can be relevant to show that he harbored an intense hatred or ideology, which motivated a charged act of violence. In Moore, the defendant was charged with shooting at two police officers. The People introduced a number of letters and documents linked to the defendant and his associates, including letters describing the police as “pigs” and advocating armed violence against the police. See id. at 428. On appeal, the defendant argued that the evidence was unduly prejudicial, that it bore no connection to the charged shooting, and that it improperly “place[d] his character in issue.” Id. This Court affirmed the conviction, holding that the letters and documents provided corroborating evidence of the defendant’s motive: -116- that he “had a vicious ideological hatred for the police.” Id. at 428-29. This Court observed that the defendant’s motive was “not only material but controlling,” because “[t]he People’s case was largely circumstantial.” Id. at 428. This Court added that “[i]t was for the jury to determine whether it [the documentary evidence] was entitled to any weight.” Id. at 429; see also People v. Slavin, 1 N.Y.3d 392, 398 (2004) (rejecting Fifth-Amendment challenge to the admission of photographs of defendant’s racist and Nazi tattoos, from which the jury might have “inferred defendant’s motive” for committing a race-based crime); People v. Sanders, 127 A.D.2d 937 (3d Dept. 1987) (where defendant was charged with assaulting two correction officers, prosecutor properly introduced defendant’s prior letter stating that he felt like assaulting a correction officer); see generally People v. Lewis, 151 A.D.2d 784, 785 (2d Dept. 1989) (documents written by defendant, although potentially “inflammatory,” were “properly admitted on the issues of identity, intent and motive”). By the same token, a defendant’s hostility toward women, arising from past experiences, can be relevant to explain his motive for committing a brutal and seemingly unprovoked attack. For example, in People v. Hoffman, 570 N.W.2d 146 (Mich. App. 1997), the defendant was charged with attempting to murder his live-in girlfriend. See id. at 147. To prove the defendant’s motive, the prosecution introduced evidence of his “general hatred toward women.” Id. Specifically, the defendant had described ex-girlfriends as “bitches,” was “vehement in expressing hostility against his former girlfriends,” and had stated that “women are all sluts and -117- bitches and deserve to die.” See id. at 148.78 The Michigan appellate court upheld the admission of the defendant’s prior statements, ruling that they were “material to defendant’s motive for his unprovoked, cruel, and sexually demeaning attack on his victim.” Id. at 149. The court explained that without this evidence, the jury might have “found it difficult to believe . . . that defendant committed the depraved and otherwise inexplicable actions.” Id. at 150; see also Masters v. People, 58 P.3d 979, 1000 (Colo. 2002) (defendant’s misogynistic journal entries, in which he wrote about killing women and drew pictures of women stabbed and sliced to death, were properly admitted as “other acts” evidence in homicide prosecution where female victim was stabbed and mutilated: defendant’s drawings and writings depicting his “hatred of women” provided “not just a motive for the crime, but for why the crime was committed in this specific manner”).79 78 The prosecution also introduced evidence that defendant had “beaten and threatened” two former girlfriends. Id. at 148. 79 In related contexts, courts around the country have found defendants’ expressions of hate admissible to explain seemingly random acts of violence, bias crimes, or even terroristic acts that were motivated by a virulent ideology. See, e.g., United States v. Salameh, 152 F.3d 88, 111 (2d Cir. 1998) (in prosecution for first World Trade Center bombing, trial court properly admitted defendants’ writings and “terrorist materials” expressing “sulphurous anti-American sentiments”); State v. Crumb, 649 A.2d 879, 881-83 (N.J. App. 1994) (motive for defendant’s “otherwise inexplicable act of random violence” was provided by his writings expressing “hostility toward and hatred of black people and his concomitant desire to see them dead”; although “potentially inflammatory,” defendant’s writings were “central to the case”); United States v. Seale, 600 F.3d 473, 495 (5th Cir. 2010) (where defendant was charged with involvement in a racially-motivated kidnapping, “evidence related to [defendant’s] racial animus and membership in the KKK, while racially inflammatory, was relevant to show [defendant’s] motive and intent”); see also People v. Griffin, 224 P.3d 292, 295- (Continued…) -118- Applying these standards here, the courts below properly ruled the challenged journal excerpts admissible to show defendant’s motive to kill Catherine, as evidenced by his developing state of mind. Defendant’s motive, of course, was his animosity after being spurned by a romantic partner. And the intensity of defendant’s rage, which built up over time, could only be understood in the context of his prior, failed relationships. In that regard, defendant’s thoughts of violence began after Boo and Amanda rejected his advances: his love for them transformed rapidly into intense hatred and thoughts of violence. At that point, however, defendant was “unable to kill” (Goetz: A1469). Still, he retained his rage, which escalated when Catherine, too, rejected him. And now, defendant was ready to kill -- to rip Catherine apart (see Goetz: A1478-79) -- even if, as a consequence, he faced prison or the electric chair (see Goetz A1480-81). Indeed, Catherine’s brutal, unprovoked murder made sense only in light of this background. As the prosecutor argued at trial, a mere breakup or lovers’ quarrel ______________________ (…Continued) 98 (Colo. App. 2009) (to prove motive, prosecutor properly introduced defendant’s notebooks containing diatribes against Caucasians); O’Neal v. Delo, 44 F.3d 655, 661 (8th Cir. 1995) (defendant’s membership in the Aryan Brotherhood or the Aryan Nations was relevant to demonstrate his motive to kill African-American victim); United States v. Beasley, 72 F.3d 1518, 1522, 1527 (11th Cir. 1996) (cult’s religious beliefs, which included black supremacy, hatred of white Americans, and advocacy of violence, properly introduced since its “religious teachings were used to justify, rationalize, and promote crime”); People v. Nicolaus, 817 P.2d 893, 565, 577-78 (Cal. 1991) (trial court properly admitted defendant’s writings evidencing his “scorn and hatred of religion” and particularly of the sect to which the victim, his ex-wife, belonged). -119- would not ordinarily induce the type of rage that a killer must possess commit such a gruesome slaying. Hence, without the background evidence detailing defendant’s longstanding rage against his former romantic partners, and his desire to avenge perceived wrongs committed by them, the jury could not fully comprehend the motivation for this senseless and especially brutal crime. Additionally, defendant’s longstanding fascination with knives and slit throats demonstrated why he committed the murder in a particular fashion. Simply put, by unmasking defendant’s intense hatred of the women who rejected him, the journals confirmed the forensic, cell site, and other circumstantial evidence pointing to his guilt and put to rest any notion that someone else -- perhaps Haughn -- had a superior motive to commit the murder. Contrary to defendant’s argument (DB: 123-25), in order for the jury to understand defendant’s motivation for the murder, it would not have sufficed to introduce only the entries written specifically about Catherine. To be sure, the entries about Catherine demonstrated defendant’s anger: he labeled Catherine a “whore,” wrote about her throat being slit, and imagined her “ripped apart” by a “gang of lunatics.” But as discussed, it was important for the jury to understand that defendant was not merely venting about his breakup with Catherine but in fact harbored a more deeply-seated rage against the women who spurned him. As with Catherine, defendant initially expressed deep love toward Boo and Amanda, which transformed into anger and violent thoughts when the relationships went sour. As with Catherine, defendant described Amanda as a “whore” once he turned on her; he likewise -120- described Boo as “poisonous” and “dangerous.” He expressed “pent up rage” toward Amanda and had “thoughts of revenge,” though at that point he felt “unable to kill.” Indeed, defendant’s expressed inability to kill Amanda helped the jury understand that, when he penned “The Killin’ Machine” about Catherine, he had been contemplating violence for some time. And now, unlike with Amanda, defendant had overcome his inhibitions and was ready to act. Hence, defendant’s journal entries about Boo and Amanda were not “cumulative” or “remote” (DB: 120-21). Defendant’s rage against Catherine could not be separated from his anger at Boo and Amanda, since his motive to kill arose not just from one rejection but from the sum total of his grievances against his former romantic partners. Defendant’s “long-continued animosity and ill-will” compellingly demonstrated how the seemingly commonplace frustrations of his breakup with Catherine “ripen[ed] into deliberate murder.” Decker, 157 N.Y. at 193. Indeed, without this evidence, the jury might have found it difficult to comprehend the reasons for defendant’s “depraved and otherwise inexplicable actions.” Hoffman, 570 N.W.2d at 150. Further, contrary to defendant’s argument, the need to place his relationship with Catherine in “context” was not a “euphemism for ‘propensity’” (DB: 109-10; see DB: 128). In fact, it was the exact opposite of “propensity” evidence. The People did not argue that defendant had a history of committing violent acts; indeed, the parties stipulated that defendant had not harmed Boo or Amanda. Instead, the journals -121- explained defendant’s developing mental state and motive to the point where he was willing and able to use violence against Catherine. In that sense, defendant’s journals were his “manifesto” -- the mental musings of a person who commits a violent act motivated by a lifetime of irrational or perceived grievances. Since defendant willingly recorded his thoughts, he should not be heard to complain that they were used to prove his motive. Indeed, there was no better evidence of motive than defendant’s own words. The high probative value of these writings, therefore, outweighed any potential for undue prejudice. See Crumb, 649 A.2d 879 at 881-83 (defendant’s racist writings, although “potentially inflammatory,” were “central to the case”); Nicolaus, 54 Cal.3d at 578 (although defendant’s writings about religion “carried some potential for prejudice,” they were “patently relevant and probative to the prosecution’s case-in-chief”). Moreover, the challenged journal entries were particularly relevant in light of the defense. From the outset of the case, defense counsel described defendant as a peaceful, artistic, happy-go-lucky individual who had no motive to kill Catherine and who was, in fact, incapable of violence. In that regard, in her opening statement, defense counsel described defendant as a “very, very peaceful person, a nonviolent person” who was “gifted” and “artistic” (Opening: A313). Counsel lauded defendant as a “wonderful” student who had earned a college degree and had “made a name for himself” in theater and as a rock musician (Opening: A314-15). Counsel asserted that defendant’s diary entries were merely “songs” or “lyrics” and claimed that the jury -122- would not “hear one word” that defendant “was gonna [sic] harm anyone or slice up anyone” (Opening: A308, A316-17). Counsel argued further that defendant did not have an “obsessive relationship” with Catherine; instead, she described their relationship as a “love story” (Opening: A310; see also Opening: A305). Subsequently, in his trial testimony, defendant claimed that he harbored no ill will toward Catherine (or women in general); that he did not fantasize about murder or slit throats; and that he had no intention of harming Catherine or anyone else. Defendant then called a bevy of character witnesses who attested to his reputation for peacefulness, honesty, and generosity, adding that defendant meditated and studied Buddhist texts. Defense counsel built on that theme in summation, describing defendant as a “calm,” “peaceful,” “gentle,” “caring,” “soft-spoken” follower of “Buddhist principles of nonviolence,” and urging that he was “not capable” of hurting Catherine. Counsel even read to the jury a poem that defendant had written about peace, love, joy, and smiling children. In closing, counsel asked the jurors to “give Paul Cortez his life back.” The People were obviously entitled to demonstrate that defendant was not the peaceful, loving, non-violent man whom he claimed to be. And to that end, the journals demonstrated that defendant harbored hateful, vengeful feelings toward his former romantic partners, motivated by his past rejections and grievances. Indeed, as defendant does not appear to dispute on appeal to this Court, it was perfectly appropriate for the prosecutor to cross-examine him about other journal entries -- not -123- introduced on the People’s direct case -- in which defendant described himself as a “misogynist” who wanted to “bury every girl in the ground,” “rip their hearts,” and “turn them to stone.” Simply put, defendant’s attempt to portray himself to the jury as a gentle, peaceful, loving soul was an utter sham, and the prosecutor had the right to unmask this fraud using defendant’s own written words. Still, defendant argues that his “motive was never in dispute at trial,” because he “denied committing the crime at all” (DB: 96). Initially, however, this claim is unpreserved. At trial, defendant merely asserted that the challenged journal entries constituted improper “propensity” evidence; he did not argue that the issue of motive had been somehow removed from the case. Thus, this Court has no power to review defendant’s current argument. See CPL 470.05(2). Moreover, defendant did not raise this claim below for an obvious reason: the People had the right to prove his motive regardless of whether he directly contested any particular portion of the proof. As this Court has long recognized, a defendant’s motive to commit the charged crime is relevant and admissible. See People v. Fitzgerald, 156 N.Y. 253, 258 (1898) (“In the investigation of all charges of crime it is competent to prove a motive on the part of the accused”). And, the People may “present all the admissible evidence available to them, regardless of the trial strategy defendant adopted.” People v. Alvino, 71 N.Y.2d 233, 245 (1987). This rule makes sense, because the People bear the sole burden to prove the charged crime. See CPL 70.20; People v. Segal, 54 N.Y.2d 58, 66 (1981). In fact, when the proof is “largely circumstantial,” the -124- defendant’s motive becomes “not only material but controlling.” Moore, 42 N.Y.2d at 428. Here, therefore, defendant is wrong to assert that the People were not entitled to prove motive, since he contested only “whether [he] killed Woods -- not why he would have done so if he did” (DB: 97) (emphasis in original). As explained, defendant’s motive was a permissible subject of inquiry, and the People had the right to prove it in their direct case, regardless of the defense. For the same reasons, defendant’s unpreserved argument that the journal entries should not have been introduced until after he had testified (DB: 126-27) is likewise meritless. Indeed, contrary to defendant’s newfound assertion, the question of motive was central to the case. As just described, trial counsel opened by arguing that defendant loved Catherine and harbored no animosity against her, and counsel followed up that opening with a defense case and a summation emphasizing defendant’s supposedly non-violent nature. Clearly, then, the defense strategy was to convince the jury that defendant was not the killer because he had no motive to kill Catherine. Instead, defendant posited that he was non-violent, innocent, and in love. The People were obviously entitled to explain to the jury that defendant did in fact harbor a strong motive to kill.80 80 Because the challenged journal entries were properly introduced to show defendant’s motive and state of mind, there is no need to consider defendant’s additional, (Continued…) -125- Defendant next argues that his journal entries about Boo and Amanda should have been analyzed as “bad acts” or uncharged crimes evidence subject to the Molineux rule (DB: 82, 88-95). Of course, a person may not “be convicted of one offense upon proof that he committed another.” People v. Molineux, 168 N.Y.2d 264, 292 (1901). Thus, evidence of a defendant’s prior bad acts may be admitted if “relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged.” People v. Cass, 18 N.Y.3d 553, 560 (2012); see also People v. Rojas, 97 N.Y.2d 32, 37-40 (2001); People v. Till, 87 N.Y.2d 835, 836 (1995). Here, as the courts below concluded, defendant’s recorded thoughts did not constitute “bad acts.” After all, the journals were just defendant’s writings. He committed no crime by writing the journal entries, and the parties stipulated that he committed no acts of violence against Amanda or Boo. Thus, as the courts below properly held, defendant’s writings fell outside the Molineux rule. See People v. Taylor, 46 A.D.3d 1213, 1214 (3d Dept. 2007) (defendant’s letter stating his criminal disposition was relevant to intent and did not constitute a “prior bad act” or “uncharged crime”). Indeed, defendant’s pent-up hostility toward ex-girlfriends was precisely the type of motive evidence that this Court approved in Moore, supra, 42 N.Y.2d at 428 ______________________ (…Continued) unpreserved arguments that the entries were not admissible to prove intent, identity, or background (see DB: 98-109). -126- (upholding admission of defendant’s writings expressing “vicious ideological hatred for the police”). And contrary to defendant’s contention (DB: 88), in Moore, this Court did not analyze the defendant’s writings as Molineux or “bad acts” evidence or suggest that a Molineux-type analysis applied. See id. at 428. Instead, this Court conducted the same analysis that Scarola mandates for all evidence: balancing the probative value (for instance, the relevance to motive) against the potential for undue prejudice. Using that standard evidentiary analysis, this Court found the defendant’s writings admissible despite any potential for prejudice, and remarked that the jury was entitled to determine whether to give them “any weight.” See id. at 428-29. That same standard evidentiary analysis should apply here. Defendant’s reliance on cases involving evidence of actual bad acts (see DB: 88-89) is misplaced, as obviously, Molineux analysis applied in those cases.81 Equally frivolous are defendant’s citations to lower court cases that did not discuss Molineux principles at all (see DB: 89).82 81 See, e.g., People v. Jackson, 8 N.Y.3d 869, 870 (2007) (defendant’s actual “prior uncharged sexual assault against another,” as well as his “simultaneously uttered out-of-court statement” threatening to rape his future victim); People v. Bradley, 20 N.Y.3d 128, 132, 134-35 (2012) (defendant’s admission 10 years before the charged crime that she had stabbed a different man and had been “very angry toward men”); People v. Richardson, 137 A.D.2d 105 (3d Dept. 1988) (remanding for a new trial on other grounds and noting that trial court might wish to reconsider whether the defendant could be impeached “by evidence of prior or subsequent acts of promoting prostitution found in [his] diary”). 82 See, e.g., People v. Wachtel, 124 A.D.2d 613, 615 (2d Dept. 1986) (holding undated diary entries “purportedly written by” defendant inadmissible to show state of mind, but not describing entries as uncharged crimes or bad acts); People v Spence, 92 A.D.3d 905, 906 (2d Dept. 2012) (holding that prosecutor’s summation comments regarding defendant’s “gangster” tattoos constituted an improper reference to defendant’s “character”). -127- In any event, even if defendant’s journal entries could somehow be equated with “bad acts,” they were still admissible to prove his motive and state of mind. Of course, as noted above, a defendant’s prior bad acts may be admitted if “relevant to some material fact in the case, other than the defendant’s propensity to commit the crime charged.” People v. Cass, 18 N.Y.3d 553, 560 (2012); see also People v. Rojas, 97 N.Y.2d 32, 37-40 (2001); People v. Till, 87 N.Y.2d 835, 836 (1995). In particular, bad acts evidence may be admitted to establish a defendant’s motive to harm an intimate partner or to perpetrate a hate crime. See Cass, 18 N.Y.3d at 563 (defendant’s prior murder of gay man relevant to show his “premeditated intent to target gay men for violence”); People v. Dorm, 12 N.Y.3d 16, 19 (2009) (defendant’s prior conduct toward domestic violence victim was “probative of his motive and intent to assault” her, “provided necessary background information on the nature of the relationship and placed the charged conduct in context”); People v. Alas, 44 A.D.3d 534, 534-35 (1st Dept. 2007) (evidence of defendant’s “prior acts of hostility and racial animosity” properly admitted); People v. Cousins, 181 P.3d 365 (Colo. App. 2008) (defendant’s previous acts of violence against other women properly admitted: prior incidents showed that defendant “used violence and threats of violence against women when they frustrated his desires”); see generally Ingram, 71 N.Y.2d 474, 480 (1988) (uncharged robbery “tend[ed] to refute defendant’s claim of an innocent state of mind”). Here, as explained in detail above, the jury could not fully understand defendant’s progression of thinking -- and thus his motive for killing Catherine in -128- such a brutal fashion -- without reading his journal entries about Boo and Amanda. Indeed, as this Court recognized in Decker, supra, longstanding animus constitutes compelling proof of motive. And, the challenged entries here were necessary to show defendant’s intense and escalating hatred of the women who spurned him. People v. Bradley, 20 N.Y.3d 128, supra, is not to the contrary. In that case, the defendant was on trial for manslaughter for stabbing her estranged boyfriend. See id. at 130-31. In an attempt to refute her self-defense claim, the People introduced testimony from a social worker that “during a therapy session . . . some ten years before” the charged homicide, the defendant had “confessed that she had at some unspecified, necessarily more remote time stabbed an unidentified man,” who was harassing her, in the thigh. Id. at 132. The therapist added that the defendant had been “very angry toward men.” Id. Significantly, the therapist “testified from her notes” and “had no independent recollection of her professional interaction with defendant.” Id. This Court ruled that the social worker’s testimony was improperly admitted, reasoning that the defendant’s self-defense claim was not “disproved by proof of the bare circumstance that defendant at some remote, indeterminate time had stabbed an unidentified man in the thigh.” Bradley, 20 N.Y.3d at 134. This Court noted that, in the absence of more information about the prior stabbing, the jury could only “speculate” about the nature of the defendant’s conduct. Id. at 135. In fact, this Court observed, the defendant might have been “ward[ing] off a sexual or other -129- serious assault.” Id. This Court added that while the defendant might have been “angry at men,” her anger could have arisen from a genuine “fear for [her] personal safety.” Id. This Court concluded, therefore, that the social worker’s testimony was not probative “in any reasonably disciplined way,” id., and was “potentially extremely prejudicial,” id. at 136. This case is far different from Bradley, for several reasons. Initially, the challenged evidence here was not remote, as defendant’s relationship with Catherine began not too long after the end of his failed relationships with Boo and Amanda.83 As defendant’s continuing journal entries demonstrated, his rage at the women who spurned him, sparked by those previous experiences, had not subsided. Further, the journal entries here were detailed and vivid, giving a full, first-hand account of defendant’s state of mind and motive for killing for Catherine after she ended their relationship. By contrast, the therapist’s testimony in Bradley, which was based solely on her notes, was so vague that the jury was forced to speculate about the details of the previous incident. Moreover, in Bradley, the jury heard about a serious prior crime -- the defendant had stabbed another man. Unlike defendant’s recorded thoughts here, which did not describe any actual bad acts, the prior stabbing in Bradley created 83 Defendant’s relationships with Boo and Amanda occurred between 1999 and 2002, and he met Catherine in the fall of 2004. -130- precisely the type of “propensity” risk that Molineux sought to regulate. Thus, this Court’s holding in Bradley does not support defendant’s argument for reversal here. Next, defendant points to out-of-state cases holding that diary entries or writings recounting violent thoughts should be analyzed as bad acts evidence (see DB: 89-94). But critically, many of the cases cited by defendant held that the evidence at issue, even if analyzed as “bad acts,” was probative and admissible.84 In fact, in several of the cases upon which defendant relies, the courts found that evidence of the defendant’s actual prior crimes or criminal plans was probative and admissible.85 To be sure, defendant cites a handful of cases, some of them unpublished, in which out-of-state courts held that a defendant’s writings or journal entries were improperly admitted. Those cases, however, involved either admissions to actual past criminal conduct -- which obviously created a stronger propensity inference -- and/or inflammatory rhetoric that was completely irrelevant to the charged crimes. See, e.g., 84 See, e.g., Hoffman, 570 N.W.2d at 148-50; Crumb, 649 A.2d at 882; Turpin v. Kassulke, 26 F.3d 1392, 1400 (6th Cir. 1994); United States v. Cviganovich, 556 F.3d 857, 864 (8th Cir. 2009); see also United States v. Houston, 205 F. Supp. 2d 856, 865 n. 6 (W.D. Tenn. 2002), aff’d 110 Fed. Appx. 536 (6th Cir. 2004). 85 See United States v. Foster, 939 F.2d 445, 449, 455 (7th Cir. 1991) (defendant’s admission that he was the “biggest Dope Dealer . . . all over town”); Boyd v. City and County of San Francisco, 576 F.3d 938 (9th Cir. 2009) (civil case: decedent’s long criminal history, as well as rap lyrics advocating murder of police officers); State v. Eastwood, 850 A.2d 234, 243-47 and n. 2 (Conn. App. 2004) (journal entry in which defendant admitted to a sexual relationship with a child); Cook v. State, 45 S.W.3d 820 (Ark. 2001) (notebooks and rap lyrics detailing plans to commit armed robbery); cf. State v. Barrett, 401 N.W.2d 184, 185-89 (Iowa 1987) (journal entries admissible under Rule 404(b) to show defendant’s intent and motive to kill his wife; however, entries in second journal regarding defendant’s entirely unrelated criminal plans had no relevance and were improperly admitted). -131- State v. Skinner, 2012 WL 3762431, *4, *8 (N.J. App. 2012) (unpublished opinion) (“inflammatory” rap lyrics that were “irrelevant to motive” or intent and which included admissions that defendant “not only believed in addressing people who cross him by killing them but also had done that in the past”); People v. Hilton, 2005 WL 1489494, *2 (Mich. App. 2005) (unpublished opinion) (rap lyrics describing uncharged sexual assaults that were highly prejudicial and not “probative of any specific disputed issue in this case”); In re J.A.L., 694 N.W.2d 748, 751-53 (Iowa 2005) (juvenile delinquency adjudication: journal entries regarding “blood, murder, and death” that were entirely unrelated to the charged offense and which, contrary to the prosecutor’s argument, were not relevant to identity); State v. Tolson, 2005 WL 147918 (Del. Super. 2005) (rap lyrics where defendant described selling drugs and “cooking” drugs in his grandmother’s kitchen insufficiently probative of intent).86 Here, in sharp contrast, the challenged journal entries recounted no actual crimes and were highly relevant to defendant’s motive and state of mind. Nevertheless, defendant asserts that the trial court applied the wrong legal standard by failing to identify a non-propensity purpose for the challenged entries and by not balancing the probative value of the evidence against the potential for undue prejudice (DB: 94-95). Defendant, however, is wrong. To be sure, the courts below 86 Defendant’s reliance on People v. Goldsberry, 630 N.E.2d 1113 (Ill. App. 1994), is similarly inapt, as that case involved evidence of the defendant’s gang affiliation, which the court described as a “unique problem” in light of the public’s “deep, bitter and widespread prejudice against street gangs.” Id. at 1117 (internal quotations omitted). -132- found that the journal entries did not constitute “bad acts” and thus concluded that Molineux analysis did not apply. And, as argued, that conclusion was correct. Regardless, however, the trial court followed the Molineux framework by holding that the entries were relevant for a non-propensity purpose: to show defendant’s motive and state of mind. Further, the trial court properly ruled that the probative value of the challenged entries outweighed the potential for undue prejudice. Significantly, the judge noted, defendant’s thoughts about Boo and Amanda were never translated into action. The judge thus minimized any potential prejudice by having the prosecutor stipulate to the fact that Boo and Amanda were unharmed (see A529, A1584; PA 19-20). Notably, too, since defendant had a full and fair opportunity to air his views concerning “the relevance or interpretation of the admitted passages,” the potential for undue prejudice was reduced. People v. Carter, 197 A.D.2d 698, 699 (2d Dept. 1993). And, of course, the court properly entrusted the jury to weigh the conflicting inferences and the various interpretations that could be drawn from the journal excerpts.87 Defendant’s appellate contention that the challenged journal entries constituted improper “character” evidence (see, e.g., DB: 3, 89, 93, 128, 132, 134) is completely 87 Defendant’s appellate assertion that the court should have issued a limiting instruction to aid the jury’s deliberations (DB: 127) is unpreserved, as defendant never requested such an instruction below. See, e.g., People v. Ingram, 71 N.Y.2d 474, 479 (1988) (“No question concerning the imprecision of the court’s limiting instructions is preserved for our review”); People v. Jackson, 76 N.Y.2d 908, 908 (1990) (claim of error in jury instruction must be preserved by specific objection). -133- unpreserved, as the Appellate Division found. In any event, “character evidence” is evidence of a defendant’s reputation in the community -- not evidence of a defendant’s internal thought processes. See People v. Miller, 35 N.Y.2d 65, 68 (1974) (“character evidence advanced or given at trial has to do with the community or general estimate of defendant’s character or reputation”). Here, the People did not offer any evidence of defendant’s reputation in the community. Instead, as discussed, the prosecutor introduced defendant’s writings to show his state of mind and motivation for committing a gruesome murder.88 Finally, defendant raises yet another unpreserved challenge to the journal entries, asserting that the People introduced them without laying a proper foundation. According to defendant, his journal entries were not admissible absent expert testimony or other psychological evidence explaining their relevance (see DB: 111-20). Defendant, however, did not raise this claim at trial, and he should not be heard to raise this entirely new challenge to the evidence for the first time on appeal. See People v. Williams, 70 N.Y.2d 946, 946-47 (1988) (claim that People failed to lay proper foundation for cross-examination questions unpreserved). 88 That conclusion is not altered even if defendant’s hatred of the women who spurned him might be viewed as a character flaw, as the prosecutor did not introduce reputation or character evidence. See Moore, 42 N.Y.2d at 428 (defendant’s ideological hatred of the police properly admitted to show motive for shooting, “even though it reflected on the defendant’s character”). In fact, it was defendant who introduced his character into the trial, calling several witnesses to testify about his reputation for truthfulness and nonviolence. -134- In any event, defendant’s argument is meritless, because no foundation need be laid for the admission of a defendant’s own statements demonstrating his motive. Indeed, a defendant’s own statements are generally admissible as admissions of a party-opponent. See People v. Chico, 90 N.Y.2d 585, 589 (1997) (“[A]dmissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever, or to whomsoever made”) (internal quotations omitted). And, as discussed, the defendant’s motive to commit the charged crime is always “competent” evidence. Fitzgerald, 156 N.Y. at 258. Further, contrary to defendant’s argument, the People need not present expert testimony in order to prove a person’s mental state. See, e.g., People v. Cratsley, 86 N.Y.2d 81, 87-88 (1995) (expert testimony not required to demonstrate rape victim’s “cognitive, social, psychological and emotional limitations” that rendered her incapable of consenting to sexual act). Of course, defendant could have called his own expert if he had truly believed at trial -- as he asserts for the first time on appeal -- that expert testimony was necessary to properly interpret the journals (see DB: 112-14). Defendant, however, declined to do so, deciding instead to explain the writings himself. Certainly, then, the People were not required to call an expert (or any other “foundational” witness) in order to introduce defendant’s own written expressions of his motive. The -135- prosecutor simply made arguments based on inferences drawn logically from the journal entries, matters well within the ken of the average juror.89 In short, the trial court properly admitted the challenged journal entries, as they provided probative evidence of defendant’s motive and state of mind. C. Defendant has not preserved any challenge to the prosecutor’s arguments to the jury about the journal excerpts, which constituted fair comment on the evidence and a fair response to defense counsel’s arguments. While not directly challenging the prosecutor’s arguments to the jury, defendant peppers his evidentiary claim about the journal entries with frequent citations to the prosecutor’s opening and closing statements. In particular, defendant takes issue with the prosecutor’s argument that the journal entries demonstrated defendant’s progressive rage, which built up over time and culminated in his murder of Catherine (DB: 79-81, 130-31; see Opening: A283-85, A300-01; Summation: A2276- 78, A2285-86). Defendant also complains about the prosecutor’s references to entries that betrayed defendant’s “misogyny,” “narcissism,” and “violent nature” (DB: 81 n. 40, 130; see Summation: A2195, A2268, A2285-88, A2299-2300). In addition, 89 Contrary to defendant’s argument (DB: 115), this Court did not hold in Moore that the defendant’s anti-police writings would not have been admissible absent foundational testimony. To be sure, this Court noted that the defendant’s writings corroborated other testimony that defendant carried out the shooting because of his hatred for the police. See Moore, 42 N.Y.2d at 428-29. This Court did not opine, however, that the defendant’s writings would not have been admissible absent the other testimony. And certainly, contrary to defendant’s unpreserved contention (see DB: 111-20) this Court did not suggest that a jury cannot properly understand a defendant’s expressions of hatred without help from an expert. -136- defendant labels as “incendiary” the prosecutor’s references to defendant’s drawings of knives (DB: 80; see Summation: A2266-67). According to defendant, the prosecutor’s remarks “demoniz[ed]” him, “‘assassinate[d]’ his ‘character’ and ‘good name,’” and constituted an “appeal to propensity” (DB: 129-30). As noted, defendant does not appear to be mounting a legal challenge to the prosecutor’s remarks. But if his criticisms of the prosecutor’s arguments are in fact a legal challenge, his complaints are entirely unpreserved. During the challenged portions of the prosecutor’s opening statement, defense counsel raised only two unelaborated objections, which the court overruled (see Opening: A284). Similarly, in response to the prosecutor’s summation comments that he now characterizes as damaging, defendant raised only one unelaborated objection (see Summation: A2267). Therefore, no question of law is preserved for this Court to review. See People v. Harris, 98 N.Y.2d 452, 492 n. 18 (2002) (“Defendant did not object to many of the specific comments during the summation and the few objections defendant did raise were all of a general nature; his complaints are thus unpreserved.”).90 90 Defense counsel also raised a perfunctory objection to the prosecutor’s remark that, before defendant met Catherine, he was “0 for four or 0 for five in trying to get successful relationships” (Summation: A2278). Specifically, counsel argued that the comment “[c]alls for speculation” (A2278). When the court overruled counsel’s objection (A2278), counsel raised no further complaints about the prosecutor’s line of argument. Counsel’s argument, which was limited to one specific instance of alleged “speculation,” did not preserve his current appellate complaints, which are markedly different. -137- In any event, the prosecutor’s arguments were appropriate. Of course, an attorney is afforded “the widest latitude . . . in advocating his cause.” People v. Ashwal, 39 N.Y.2d 105, 109 (1976) (internal quotations omitted). Further, the prosecutor is entitled to respond vigorously to the defendant’s arguments. See, e.g., Cass, 18 N.Y.3d at 564; People v. Halm, 81 N.Y.2d 819, 821 (1993). Here, in his opening statement, the prosecutor fairly described the journals as demonstrating defendant’s obsession with Catherine and his motive for committing the violent crime (see Opening: A284-85). After all, defendant dwelled on Catherine in his journal entries, became increasingly angry with her, phoned her obsessively after their breakup, and wrote about killing her. Similarly, in his closing argument, the prosecutor fairly commented on the journal entries and fairly responded to defendant’s trial testimony and to defense counsel’s summation. As detailed above, defendant testified that all of the journal entries were benign and that they did not reflect any contemplation of killing Catherine. Defense counsel built on that theme in her closing argument, contending that defendant’s entries did not display “criminal thoughts” or “thoughts that [defendant] would harm anyone” (Summation: A2162). Counsel asserted that the prosecutor “exaggerate[d]” the significance of the journal entries, “[b]ecause they don’t have the evidence” (Summation: A2147). Counsel even compared the use of the journals to a “Twilight Zone” episode, where a person was arrested for “standing in front of a bank” and “thinking about robbing it” (Summation: A2162). According -138- to counsel, defendant had merely “expresse[d]” his feelings and was “learning how to deal with them,” whereas “someone who internalizes their feelings is someone who erupts” (Summation: A2162). In fact, counsel used the journals to demonstrate defendant’s sensitivity, reading to the jury a love poem that he had written (see Summation: A2175-78). The prosecutor had every right to respond to those arguments by refocusing the jury on defendant’s actual words instead of his self-serving interpretations of them. After all, in his writings, defendant had described himself as a “misogynist” (Cortez: A2022) and a “monster” (Goetz: A1470). Defendant himself drew the pictures of swords, wrote about slit throats and knives touching the skin, and described his urge to kill. Additionally, defendant wrote about intense love transforming into intense hatred, describing that same pattern with Catherine, Boo, and Amanda. Simply put, in his writings, defendant described his progressive rage that became a desire to kill. The prosecutor fairly commented on that evidence by pointing out the obvious implications of defendant’s own words. At the very least, the prosecutor drew reasonable inferences from the evidence. Contrary to defendant’s unpreserved suggestions (DB: 129-31), the prosecutor did not denigrate defendant or urge the jury to convict him because of his bad character. Instead, the prosecutor properly argued that defendant’s writings demonstrated his motive and state of mind, as those were classic jury questions. Indeed, the prosecutor’s arguments were an entirely understandable response to -139- defense counsel’s over-the-top summation, in which counsel urged that defendant was peaceful and non-violent, that he harbored nothing but love for Catherine, and that he was a person who was fundamentally incapable of murder. Significantly, the trial court’s instructions ensured that the jury based its verdict solely on the evidence and not on any supposedly inflammatory rhetoric from counsel. After the arguments concluded, the court focused the jury on the evidence, declaring that the attorneys’ arguments were “not evidence” and that the jurors had “the right to accept or to reject any lawyer’s arguments about the evidence in whole or in part depending on whether or not you find the argument reasonable and logical based on the evidence as you recall it” (Charge: A2308-09). The court reiterated that “evidence” consisted only of witness testimony and “any concessions or agreements or stipulations between counsel” (Charge: A2309). The court reminded the jury, too, that the indictment was not evidence (Charge: A2310), that the jurors were the sole judges of the facts (Charge: A2310-11), and that the jurors “alone determine[d] the truthfulness and accuracy of the testimony of each witness” (Charge: A2310). And, the court emphasized that the jury must presume defendant innocent and convict him only if the evidence proved his guilt beyond a reasonable doubt (Charge: A2319-22). The jury is presumed to have followed those instructions. See, e.g., People v. Smart, 96 N.Y.2d 793, 795 (2001); People v. Davis, 58 N.Y.2d 1102, 1104 (1983). The jury, therefore, convicted defendant based on the strength of the proof, not because of the prosecutor’s challenged summation comments. -140- In short, contrary to defendant’s unpreserved claims, the prosecutor’s opening and closing arguments about the journal entries drew reasonable inferences from the evidence and responded fairly to defense counsel’s summation. D. Any error in the admission of the journal excerpts regarding Amanda and Boo was harmless. In any event, any error in the admission of the challenged journal excerpts, or in the prosecutor’s comments about them, was harmless in light of the overwhelming evidence of defendant’s guilt. As discussed in The Evidence at Trial and in Point I, above, the trial evidence -- without regard to the disputed journal entries -- conclusively proved that defendant had killed Catherine. To begin, defendant’s bloody fingerprint was found at the scene, in a hand print on the wall made in blood that had spurted out from Catherine’s severed artery. The killer obviously made the hand print, as it was left on the wall in Catherine’s blood. Defendant’s fingerprint -- matched to his left index finger -- was found precisely where the killer’s left index finger touched the wall. Therefore, despite defendant’s assertions otherwise, the fingerprint evidence was unequivocal. Indeed, it provided conclusive circumstantial proof that defendant was the murderer. Further, a wealth of other evidence confirmed defendant’s guilt. In that regard, a boot print found on Catherine’s bloody bed sheets matched the size and type of boots that defendant was seen wearing on the evening of the murder. In addition, cell site records tracked defendant’s movements to Catherine’s apartment shortly before -141- the murder and back to his apartment immediately afterwards. Significantly, too, defendant called Catherine incessantly in the month after they broke up, including several times on the day of the murder. Tellingly, defendant stopped calling Catherine after the precise moment of her death, proving that he knew she was dead. In addition, defendant lied to his band mates about why he missed practice on the evening of the murder. And, when initially interviewed by the police, defendant omitted the fact that he had traveled to Catherine’s neighborhood shortly before the murder and traveled home right afterward. Notably, defendant was physically fit and therefore able to overpower Catherine, and he obviously knew how to get into her apartment unannounced, as evidenced by his unwelcome entry in March 2005 after Catherine had told him to “get lost.” Also, defendant’s lame attempt to create an alibi, by suddenly feigning an interest in football, displayed his consciousness of guilt. Further, defendant was seen by a neighbor discarding items in the wee hours, wearing nothing but boxer shorts in the cold. It is a fair inference that he was discarding his bloody clothing and the murder weapon, which were never found. And, of course, defendant’s journal entries about Catherine, which were undisputedly admissible, provided compelling evidence of motive: defendant was angry at Catherine over the breakup and fantasized about killing her. Hence, the totality of the evidence pointed to one conclusion only: that defendant killed Catherine. -142- Against that backdrop, the admission of a few of defendant’s journal entries regarding Amanda and Boo -- which merely contained his thoughts and evidenced no uncharged crimes -- could not have made a difference in the verdict. Surely, there is no “significant probability” that the jury would have acquitted defendant absent the challenged excerpts. People v. Crimmins, 36 N.Y.2d 230, 242-43 (1975). Further, any error was harmless even if the challenged entries constituted “bad acts.” See People v. Gillyard, 13 N.Y.3d 351, 356 (2009) (improper admission of uncharged crimes evidence is harmless where the proof of defendant’s guilt is “overwhelming” and there is no “significant probability” that the jury would have acquitted absent the challenged evidence). Additionally, the overwhelming evidence rendered harmless any reviewable error in the prosecutor’s summation. See People v. Morgan, 66 N.Y.2d 255, 259 (1985) (prosecutor’s summation comments harmless viewed “in the context of the entire summation and the overwhelming evidence of guilt”). * * * In sum, the excerpts from defendant’s journals about Boo and Amanda were relevant to his motive and state of mind and did not constitute “prior bad acts.” The trial court appropriately exercised its discretion by finding them admissible. Further, contrary to defendant’s unpreserved arguments, the prosecutor properly commented on the entries in his opening statement and in summation. In any event, any error in the admission of the challenged excerpts was harmless in light of the overwhelming evidence of defendant’s guilt. CONCLUSION The order of the Appellate Division should be affirmed. HILARY HASSLER DAVID M. COHN Assistant District Attorneys Of Counsel April 8, 2013 Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY:}/~·~ DAVID M. COHN Assistant District Attorney -143- .. ~------------------------~.1~~ .. ·----------------- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 36219, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2010. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.