The People, Respondent,v.Paul Cortez, Appellant.BriefN.Y.October 15, 2013New York County Indictment No. 6433/05 Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, against PAUL CORTEZ, Defendant-Appellant. To Be Argued By: Marc Fernich Time Requested: 30 Minutes BRIEF FOR DEFENDANT-APPELLANT LAW OFFICE OF MARC FERNICH Attorneys for Defendant-Appellant Paul Cortez 152 West 57th Street, 24th Floor New York, New York 10019 212-446-2346 Date Completed: November 30, 2012 Of Counsel: Marc Fernich i NEWYORK 8695866 v1 TABLE OF CONTENTS PAGE QUESTIONS PRESENTED ..................................................................... 1 STATEMENT OF THE CASE .................................................................. 4 ARGUMENT ........................................................................................... 12 POINT I CORTEZ WAS DENIED THE RIGHT TO CONFLICT- FREE COUNSEL BECAUSE THE TRIAL COURT CONDUCTED A DEFICIENT WAIVER INQUIRY .............. 12 A. INTRODUCTION .................................................................... 12 B. THIS COURT SHOULD JOIN ITS CONTEMPORARIES IN ADOPTING MINIMUM CONTENT REQUIREMENTS FOR ADEQUATE CONFLICT ADVISORIES ...................................................... 17 C. THE CONFLICT ADVISORY IN THIS CASE WAS MANIFESTLY INSUFFICIENT, YIELDING AN INVALID WAIVER ................................................................. 22 1. No Explanation of Particular Conflict’s Dangers ............ 26 2. No Time to Consider Risks, Explanation of Alternatives or Chance to Consult Separate Counsel ..... 35 3. No Elicitation of Narrative Understanding ..................... 40 POINT II THE DEFICIENT CONFLICT INQUIRY WAS A STRUCTURAL OR MODE OF PROCEEDINGS ERROR WARRANTING AUTOMATIC REVERSAL OF CORTEZ’S CONVICTION – OR AT LEAST A HARMFUL ERROR MANDATING REVERSAL ON THE FACTS ............................................................................ 42 ii NEWYORK 8695866 v1 A. INTRODUCTION .................................................................... 42 B. OVERVIEW OF STRUCTURAL AND MODE OF PROCEEDINGS ERROR ........................................................ 45 1. Structural Error................................................................ 45 2. Mode of Proceedings Error ............................................... 48 C. THE TRIAL COURT’S FAULTY WAIVER COLLOQUY CONSTITUTES STRUCTURAL OR MODE OF PROCEEDINGS ERROR MERITING BLANKET REVERSAL ............................................................................. 49 1. Automatic Reversal in These Circumstances Accords with Supreme Court Precedent Glossed by New York Law ........................................................................... 50 2. Automatic Reversal in These Circumstances Is Logically Dictated by the Recognition of Chosen Counsel Denials as Structural Error ............................... 51 a. A Flawed Conflict Advisory Functionally Denies the Right to Choose Counsel and Demands the Same Remedy .................................... 53 3. Deficient Conflict Inquiries Have Intangible Effects That Are Impossible to Quantify ...................................... 56 a. Individual Autonomy Is an Abstract Virtue, and the Effects of Its Denial Cannot Be Measured Objectively .............................................. 57 b. Improperly Examined Conflicts Incalculably Affect A Defendant’s Representation ...................... 58 4. Automatic Reversal in These Circumstances Vindicates Essential Institutional Interests .................... 63 iii NEWYORK 8695866 v1 5. Automatic Reversal in These Circumstances Advances Public Policy and Serves A Valuable Deterrent Purpose ............................................................ 65 6. Automatic Reversal in These Circumstances Comports with State and National Precedent ................. 66 D. REVERSAL IS ALTERNATELY WARRANTED BECAUSE THE INADEQUATELY WAIVED CONFLICT OPERATED ON FLORIO’S REPRESENTATION AND ADVERSELY AFFECTED CORTEZ’S DEFENSE ............................................................. 70 E. CONCLUSION ........................................................................ 74 POINT III THE TRIAL COURT REVERSIBLY ERRED IN ADMITTING DATED WRITINGS AND DRAWINGS EXPRESSING CORTEZ’S VIOLENT THOUGHTS AND FANTASIES ABOUT UNHARMED EX-GIRLFRIENDS – WITHOUT MOLINEUX ANALYSIS, PREJUDICE- PROBITY BALANCING, LIMITING INSTRUCTION, OR EVIDENTIARY FOUNDATION FOR THE JUNK SCIENCE PROPENSITY THEORY THEY LAUNCHED ..... 75 A. INTRODUCTION .................................................................... 75 B. THE CHALLENGED EXCERPTS FAIL MOLINEUX SCRUTINY AND SHOULD HAVE BEEN EXCLUDED ....... 85 1. Molineux-Like Strictures Govern the Admissibility of Prior Bad Thoughts Evidence ...................................... 85 2. Even Assuming an Initial Molineux Analysis, the Challenged Excerpts Had No Bearing on Any Material Issue in Dispute ................................................. 95 a. Motive Obvious and Undisputed; Issue Was Identity .................................................................... 96 iv NEWYORK 8695866 v1 b. Challenged Excerpts Irrelevant to Identity ............ 98 c. Alternative Rationales Unavailing ....................... 106 i. Intent and State of Mind Likewise Obvious and Undisputed; Challenged Entries Therefore Irrelevant and Unnecessary for Those Purposes ................. 106 ii Challenged Entries Irrelevant and Unnecessary for Context .............................. 109 d. Conclusion.............................................................. 111 3. Even Assuming Molineux Analysis and Relevance to an Issue in Dispute, the Challenged Entries Lacked Appropriate Foundation, through Expert Testimony or Otherwise ................................................................... 111 4. Even Assuming Molineux Analysis, Relevance to a Disputed Issue and Appropriate Foundation, the Challenged Entries Were Minimally Probative – and Any Probity They Had Was Dwarfed by Their Immense Capacity for Prejudice – Relegating the Entries to Harmfully Improper Propensity Evidence ... 120 C. CONCLUSION ...................................................................... 132 v NEWYORK 8695866 v1 TABLE OF AUTHORITIES CASES Alcocer v. Sup. Ct., 254 Cal. Rptr. 72 (Cal. Ct. App. 1988) ...................... 18 Arizona v. Fulminante, 499 U.S. 279 (1991) ...................................... 41, 43 Armienti v. United States, 234 F.3d 820 (2d Cir. 2000) ..................... 27, 30 Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003) .............................. 32 Boldridge v. State, 215 P.2d 585 (2009) .................................................... 32 Boyd v. San Fran., 576 F.3d 938 (9th Cir. 2009) ........................ 89, 92, 111 Brown v. Belmontes, 544 U.S. 945 (2005) ................................................ 32 Bryant v. State, 802 N.E.2d 486 (Ct. App. Ind. 2004) ............................ 118 Campbell v. Rice, 265 F.3d 878 (9th Cir. 2001) (“Campbell I”) .... 50, 52, 58 Campbell v. Rice, 302 F.3d 892 (9th Cir. 2002) (“Campbell II”) ................ 22 Campbell v. Rice 408 F.3d 1166 (9th Cir. 2005) (“Campbell III”) ....................22, 51, 52, 62 Com. v. Goldman, 395 Mass. 495, 480 N.E.2d 1023 (Mass. 1985) ..... 17, 37 Cook v. State, 45 S.W.3d 820 (Ark. 2001) ........................................... 89, 96 Crumply v. Wack, 212 A.D.2d 299 (1st Dept. 1995) ............................... 114 Cuyler v. Sullivan, 446 U.S. 335 (1980) .................................................... 47 Dawson v. Del., 503 U.S. 159 (1992) ....................................................... 121 Dodson v. State, No. CR 02-1221, 2005 WL 775859 (Ark. Apr. 7, 2005) ................................................................................ 35 vi NEWYORK 8695866 v1 Elfgeeh v. United States, 681 F.3d 89 (2d Cir. 2012) ............................... 65 Evans v. Raines, 705 F.2d 1479 (9th Cir. 1983) ................................. 26, 30 Faretta v. Cal., 422 U.S. 806 (1975).................................................... 53, 54 Fitzgerald v. United States, 530 A.2d 1129 (D.C. 1987) .................... 17, 33 Flanagan v. United States, 465 U.S. 259 (1984) .......................... 20, 32, 49 Frazier v. State, 303 S.W.2d 674 (Tenn. 2010) ............................. 18, 29, 33 Garcia v. Bunnell, 33 F.3d 1193 (9th Cir. 1994) ....................................... 36 Geders v. United States, 425 U.S. 80 (1976) ............................................ 63 Gideon v. Wainwright, 372 U.S. 335 (1963) ............................................. 43 Greene v. Commonwealth, 197 S.W.3d 76 (Ky. 2006) ............................ 118 Hannah v. State, 23 A.3d 192, 193, 195 (Ct. App. Md. 2011) ........... passim Holloway v. Ark., 435 U.S. 475 (1978) ................................................ 47, 58 Houser v. State, 823 N.E.2d 693 (Ind. 2005) ............................................ 88 In re J.A.L., 694 N.W.2d 748 (Iowa 2005) ............................. 88, 96, 97, 118 Joynes v. State, 797 A.2d 673 (Del. 2002) .............................................. 117 Kaufman v. People, 202 P.2d 542 (Col. 2009) ................................... 97, 100 Kelsaw v. Horel, No. S-08-1612, 2010 WL 3634337 (E.D. Cal. Sept. 14, 2010) ........................................................... 119, 123 Konstantinides v. Griffin, No. 10-CV-05999, 2011 WL 3040383 (E.D.N.Y. July 25, 2011) ........................................................... 25, 26, 30 Koon v. United States, 518 U.S. 81 (1996) ............................................... 90 Kopp v. Fischer, 811 F. Supp. 2d 696 (W.D.N.Y. 2011) ............................ 15 vii NEWYORK 8695866 v1 Lewis v. Mayle, 391 F.3d 989 (9th Cir. 2004) ............................... 21, 30, 32 Littlejohn v. State, 593 So. 2d 20 (Miss. 1992) ......................................... 18 Lockhart v. Terhune, 250 F.3d 1223 (9th Cir. 2001) .......................... passim Masters v. People, 58 P.3d 979 (Colo. 2002) (en banc) ...................... passim McKaskle v. Wiggins, 465 U.S. 168 (1984) ............................................... 43 Mickens v. Taylor, 535 U.S. 162 (2002) ............................................. passim Neder v. United States, 527 U.S. 1 (1999) .......................................... 43, 44 Owens v. United States, 483 F.3d 48 (1st Cir. 2007) ............................... 54 Palinski v. Mathy, No. 08 C 4581, 2009 WL 1515278 (N.D. Ill. May 28, 2009) ...................................................................... 104 People v. Abar, 99 N.Y.2d 406 (2003) ....................................................... 60 People v. Agramonte, 87 N.Y.2d 765 (1996) ............................................. 45 People v. Ahmed, 487 N.E.2d 894 (1985) .................................................. 46 People v. Alicea, 61 N.Y.2d 23 (1983) ....................................................... 40 People v. Allah, 80 N.Y.2d 396 (1992) ...................................................... 39 People v. Alvino, 71 N.Y.2d (1987) ..................................................... passim People v. Baffi, 49 N.Y.2d 820 (1980) ................................................. 34, 40 People v. Becoats, 17 N.Y.3d 643 (2011) ................................................... 41 People v. Bing, 76 N.Y.2d 331 (1990) ........................................................ 16 People v. Bradley, No. 201, 2012 WL 5845017, Slip Op. 07858 at 3, 9 (Ct. App. N.Y. Nov. 20, 2012) .................................. passim viii NEWYORK 8695866 v1 People v. Brown, 265 A.D. 153 (2d Dept. 1942), aff’d, 290 N.Y. 830 (1943) ............................................................................ 106 People v. Buskey, 45 A.D.3d 1170 (4th Dept. 2007) ............................... 122 People v. Caban, 70 N.Y.2d 695 (1987) ....................................12, 13, 24, 34 People v. Carncross, 14 N.Y.3d 319 (2010) ................................... 13, 33, 48 People v. Coleman, 703 N.E.2d 137 (Ill. 1998) ......................................... 18 People v. Cortez, 19 N.Y.3d 972 (2012) ..................................................... 10 People v. Cortez, 85 A.D.3d 409 (1st Dept. 2011) .............................. passim People v. Crampe, 17 N.Y.3d 469 (2011) ........................................... passim People v. Crump, 53 N.Y.2d 824 (1981) .................................................... 40 People v. Cunningham, 49 N.Y.2d 203 (1980) .......................................... 16 People v. De Sarno, 239 A.D.2d 74 (3d Dept. 1998) ................................. 13 People v. DiPippo, 82 A.D.3d 786 (2d Dept. 2011) ................................... 66 People v. Dorm, 12 N.Y.3d 16 (2009) .............................................. 119, 122 People v. Drake, 129 A.D.2d 963 (4th Dept. 1987) ................................. 113 People v. Edebohls, 944 P.2d 552 (Colo. Ct. App. 1996) ..................... 27, 31 People v. Ennis, 11 N.Y.3d 403 (2008) ...................................................... 66 People v. Florio, No. 01711-2006 (Sup. Ct. N.Y. Cnty.) ............................ 11 People v. Goldsberry, 630 N.E.2d 1113 (Ct. App. Ill. 1994) .............. passim People v. Gomberg, 38 N.Y.2d 307 (1975)..................................... 12, 21, 25 People v. Gray, 86 N.Y.2d 10 (1995) ......................................................... 45 ix NEWYORK 8695866 v1 People v. Griffin, 224 P.3d 292 (Col. App. 2009) .................................... 102 People v. Griffin, 249 A.D.2d 244 (1st Dept. 1998) ................................... 13 People v. Hallett, 71 A.D.2d 815 (4th Dept. 1979) ................................... 13 People v. Hernandez, 896 N.E.2d 297 (Ill. 2008) ...................................... 63 People v. Hilton, No. 254002, 2005 WL 1489494 (Mich. App. June 23, 2005) ............................................................ passim People v. Hoffman, 570 N.W.2d 146 (Ct. App. Mich. 1997) ......... 88, 92, 94 People v. Hudy, 73 N.Y.2d 40 (1988) ................................................. passim People v. Jackson, 78 N.Y.2d 638 (1991) .................................................. 45 People v. Jackson, 8 N.Y.3d 869 (2007) ...................................... 84, 91, 123 People v. Jovanovic, 263 A.D.2d 182 (1st Dept. 1999) .............................. 94 People v. Katz, 209 N.Y. 311 (1913) .......................................................... 82 People v. Kelly, 5 N.Y.3d 116 (2005) ................................................... 41, 45 People v. Konstantinides, 14 N.Y.3d 1 (2009) ................................... passim People v. Leeson, 12 N.Y.3d 823 (2009) .................................................. 119 People v. Lloyd, 51 N.Y.2d 107 (1980) ............................................... passim People v. Longtin, 92 N.Y.2d 640 (1998) ..................................14, 40, 42, 49 People v. Macerola, 47 N.Y.2d 257 (1979) ......................................... passim People v. Masters, 58 P.2d 979 (Col. 2002) ............................................... 97 People v. Mattison, 67 N.Y.2d 462 (1986) ................................................. 39 People v. McDonald, 68 N.Y.2d 1 (1986) ................................................... 39 x NEWYORK 8695866 v1 People v. McKinney, 24 N.Y.2d 180 (1969) ................................. 82, 91, 103 People v. Mehmedi, 69 N.Y.2d 759 (1987) .......................................... 41, 45 People v. Miller, 73 A.D.3d 1435 (4th Dept. 2010) ................................... 45 People v. Molineux, 168 N.Y. 264 (1901) .................................................. 72 People v. Monroe, 54 N.Y.2d 35 (1981) .............................................. passim People v. Moore, 42 N.Y.2d 421 (1977) ....................................... 84, 92, 110 People v. O’Rama, 78 N.Y.2d 270 (1991) ............................................ 41, 46 People v. Olguin, 37 Cal. Rptr. 2d 596 (1995) ................................ 113, 123 People v. Ortiz, 76 N.Y.2d 652 (1990) ....................................................... 69 People v. Patterson, 39 N.Y.2d 288 (1976) ............................................... 41 People v. Payton 2012 N.Y. Slip Op. 07701, 2012 WL 5503817 (2d Dept. Nov. 14, 2012) ........................................................... 50, 59, 61 People v. Ramos, 350 F. Supp. 2d 413 (S.D.N.Y. 2004) ...................... 32, 38 People v. Recupero, 73 N.Y.2d 877 (1988) .......................................... 40, 47 People v. Resek, 3 N.Y.3d 385 (2004)........................................................ 81 People v. Richardson, 137 A.D.2d 105 (3d Dept. 1988) ....... 82, 84, 122, 123 People v. Salcedo, 68 N.Y.2d 130 (1986) ................................................... 13 People v. Scarola, 71 N.Y.2d 769 (1988) ............................................. 94, 95 People v. Shinkle, 51 N.Y.2d 417 (1980) ................................................... 61 People v. Solomon No. 153, 2012 N.Y. Slip. Op. 07223 (Oct. 30, 2012) ................. 22, 40, 36 xi NEWYORK 8695866 v1 People v. Spence, 92 A.D.3d 905 (2d Dept. 2012) ..................................... 84 People v. Stanard, 32 N.Y.2d 143 (1973) ........................................ 123, 127 People v. Steiner, 30 N.Y.2d 762 (1972) ............................................ passim People v. Stoval, 239 N.E.2d 441 (Ill. 1968) ............................................. 33 People v. Udzinski, 541 N.Y.S.2d 9 (2d Dept. 1989) ................................. 45 People v. Vargas, 88 N.Y.2d 856 (1996) .......................................... 102, 103 People v. Vega, 3 A.D.3d 239 (1st Dept. 2004) ....................................... 119 People v. Voliton, 83 N.Y.2d 192 (1994) .................................................... 45 People v. Wachtel, 124 A.D.2d 613 (2d Dept. 1986) ......................... 84, 104 People v. Wandell, 75 N.Y.2d 951 (1990) .................................................. 64 People v. Williams, No. 263892, 2006 WL 3682750 (Mich. Ct. App. Dec. 14, 2006) ............................................................ 102 People v. Wlasiuk, 32 A.D.3d 674 (3d Dept. 2006) ................................. 106 People v. Wright, No. B162219, 2004 WL 516250 (Cal. Ct. App. Mar. 17, 2004) .............................................................. 112 Powell v. Ala., 287 U.S. 45 (1932) ....................................................... 14, 49 Puckett v. United States, 556 U.S. 129 (2009) ................................... 42, 43 Redd v. State, 444 S.E.2d 776 (Ga. 1994) ................................................. 18 Rose v. Clark, 478 U.S. 570 (1986) ........................................................... 60 Selsor v. Kaiser, 81 F.3d 1492 (10th Cir. 1996) ........................................ 24 Solina v. United States, 709 F.2d 160 (2d Cir. 1983) ............................... 50 State v. Barrett, 401 N.W.2d 184 (Iowa 1987) ...................... 87, 96, 97, 117 xii NEWYORK 8695866 v1 State v. Cheeseboro, 552 S.E.2d 300 (S.C. 2001) .............................. 97, 118 State v. Cisco, 861 So. 2d 118 (La. 2003) ........................................... passim State v. Cottle, 946 A.2d 550 (N.J. 2008) ...................................... 27, 31, 63 State v. Crumb, 307 N.J. Super. 204 (App. Div.1997), certif. denied, 153 N.J. 215 (1998) .................................................. 86, 92 State v. Deases, 476 N.W.2d 91 (Ct. App. Iowa 1991) ............................ 118 State v. Eastwood, 850 A.2d 234 (Conn. App. 2004) .................. 85, 88, 123 State v. Hanson, 731 P.2d 1140 (Ct. App. Wash. 1987) .................... passim State v. Johnson, 643 N.E.2d 1098 (Ohio 1994) ............................... 88, 101 State v. Kaye, 315 N.W.2d 337 (Wis. 1982) .............................................. 18 State v. Koskovich, 168 N.J. 448 (2001) ....................................... 86, 92, 96 State v. Lopez, 835 A.2d 126 (Ct. App. Conn. 2003), aff’d on related grounds, 859 A.2d 898 (Conn. 2004) .................... passim State v. McCary, 922 S.W.2d 511 (Tenn. 1996) .......................104, 118, 124 State v. Nance, 533 N.W.2d 557 (Iowa 1995) ......................................... 115 State v. Patterson, 796 N.W.2d 516 (Minn. Ct. App. 2011), aff'd, 812 N.W.2d 106 (2012) ................................................................ 18 State v. Sam, 907 A.2d 99 (Conn. 2006) ................................................... 47 State v. Skinner, 2012 WL 3762431 (N.J. Super. App. Div. Aug. 31, 2012) ............................................................................................... passim State v. Tolson, No. 0211007845, 2005 WL 147918 (Del. Super. Ct. Jan. 3, 2005) ........................................................ passim State v. Turner, 218 Neb. 125, 354 N.W.2d 617 (Neb. 1984) ............ passim xiii NEWYORK 8695866 v1 Stirone v. United States, 361 U.S. 212 (1960) .......................................... 43 Stoia v. United States, 22 F.3d 766 (7th Cir. 1994) ................................... 65 Strickland v. Wash., 466 U.S. 668 (1984) ................................................. 49 Sullivan v. Louisiana, 508 U.S. 275 (1993) ........................................ 43, 53 Thompkins v. Cohen, 965 F.2d 330 (7th Cir. 1992) .................................. 31 Triana v. United States, 205 F.3d 36 ........................................................ 65 Tumey v. Ohio, 273 U.S. 510 (1926) ......................................................... 43 Turpin v. Kassulke, 26 F.3d 1392 (6th Cir. 1994) ............................. passim United States v. Agosto, 675 F.2d 965 (8th Cir. 1982) ............................. 32 United States v. Allen, 831 F.2d 1487 (9th Cir. 1987) ....................... 33, 37 United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978) ................... 18, 26 United States v. Cancilla, 725 F.2d 867 (2d Cir. 1984) ............................ 28 United States v. Chambers, 441 F.3d 438 (6th Cir. 2006) ........................ 90 United States v. Cronic, 466 U.S. 648 (1984) ............................... 13, 14, 51 United States v. Curcio, 680 F.2d 881 (2d Cir. 1982) ..............16, 17, 33, 64 United States v. Cvijanovich, 556 F.3d 857 (8th Cir. 2009) ..................... 89 United States v. DeFalco, 644 F.2d 132 (3d Cir. 1979) ...................... 14, 56 United States v. Foster, 939 F.2d 445 (7th Cir. 1991) ...................... passim United States v. Fulton, 5 F.3d 605 (2d Cir. 1993) .................................. 28 United States v. Garcia, 517 F.2d 272 (5th Cir. 1975) ............................. 20 United States. v. Gonzalez-Lopez, 548 U.S. 140 (2006) .................... passim xiv NEWYORK 8695866 v1 United States v. Hoslett, No. 94-56511, 1996 WL 80186 (9th Cir. Feb. 23, 1996) ......................................................................... 35 United States v. Houston, 205 F. Supp. 2d 856 (W.D. Tenn. 2002) ......... 89 United States v. Levy, 25 F.3d 146 (2d Cir. 1994) ....................... 27, 31, 34 United States v. Marcus, 130 S. Ct. 2159 (2010) ................................ 42, 44 United States v. Marin, 630 F. Supp. 64 (N.D. Ill. 1986) ................... 28, 30 United States v. McClain, 823 F.2d 1457 (11th Cir. 1987) ...................... 27 United States v. Olano, 507 U.S. 725 (1993) ............................................ 44 United States v. Petz, 764 F.2d 1390 (11th Cir. 1985) ............................. 18 United States v. Price, 418 F.3d 771 (7th Cir. 2005) ............................. 115 United States v. Rodriguez, 968 F.2d 130 (2d Cir. 1992) ........17, 25, 33, 37 United States v. Seguame, No. 94-50157, 1995 WL 115559 (9th Cir. Mar. 16, 1995) ........................................................................ 35 United States v. Watson, 866 F.2d 381 (11th Cir. 1989) .......................... 28 United States v. Williams, 203 Fed. Appx. 976 (11th Cir. 2006) ........... 112 Vasquez v. Hillery, 474 U.S. 254 (1986) ............................................. 43, 44 Veney v. United States, 738 A.2d 1185 (D.C. 1999) ................................. 20 Waller v. Ga., 467 U.S. 39 (1984) .............................................43, 44, 53, 60 Wheat v. United States, 486 U.S. 153 (1988) ........................................... 59 Wood v. Ga., 450 U.S. 261 (1981) .................................................. 14, 46, 49 Woods v. State, 13 So.3d 1, 23-26 (Ala. Ct. Crim. App. 2007) .................. 89 xv NEWYORK 8695866 v1 STATUTES AND RULES Fed. R. Evid. 404(b) ............................................................................ passim MISCELLANEOUS Andrea Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J. L. & Arts 1 (2007) .................... passim Gary Muldoon, Understanding New York’s “Mode of Proceedings” Muddle, 59 Buff. L. Rev. 1169, 1173 & n. 25 (2011) ...................... 44, 63 Lenora Ledwon, Diaries and Hearsay: Gender, Selfhood, and the Trustworthiness of Narrative Structure, 73 Temp. L. Rev. 1185, 1218 (2000) .............................................................................. 85, 108, 109, 127 Mello & Perkins, Ted Kaczynski’s Diary, 22 Vt. L. Rev. 83, 115 & n. 135 (1997) ......................................................................................................... ..................................................................................................... 108, 120 Wayne LaFave, 3 Criminal Procedure § 11.9(d) (3d ed. 2007) ................. 65 S. P. Wilson, Rap Sheets: The Constitutional and Societal Complications Arising from the Use of Rap Lyrics as Evidence at Criminal Trials, 12 UCLA Ent. L. Rev. 345, 363 (2005) ............... passim NEWYORK 8695866 v1 QUESTIONS PRESENTED 1. One of the defendant’s two trial lawyers, responsible for countering the key evidence against him, was freighted with an undisputed conflict of interest stemming from her simultaneous felony drug prosecution by the same district attorney’s office prosecuting the defendant for murder. In a page-and-a-half discussion of the issue held on the second day of trial – although she was aware of it much earlier – the presiding judge downplayed the conflict’s existence, nature and significance, telling the defendant that (a) she “never quite know[s] what to say about that”; (b) there was an “argument” the lawyer’s concurrent prosecution by the same district attorney “in some fashion constitutes a conflict of interest”; (c) the lawyer “might, for some reason, be more interested in her own matter than yours”; (d) “I’m not quite sure I see it factually, frankly”; and (e) although the judge didn’t “know” the “status” of the lawyer’s case, it was “serious because” the lawyer “could lose her license to practice” if convicted. The judge did not inform the defendant of his right to conflict-free representation or explain how the lawyer’s pending prosecution by the 2 NEWYORK 8695866 v1 same district attorney could affect her performance in the defendant’s case. Nor did the judge give the defendant time to consider whether to keep the conflicted lawyer or change attorneys, offer him a chance to discuss the situation with an independent lawyer, or tell him he was entitled to have conflict-free counsel appointed to represent him. Instead, the judge elicited an instantaneous waiver of any conflict. Was the conflict advisory substantively deficient, and the purported waiver uninformed and invalid in consequence? 2. If the advisory was deficient, does it constitute a structural defect or mode of proceedings error requiring automatic reversal of the defendant’s conviction – without a showing of prejudice or review for harmlessness? Alternatively, did the lawyer’s inadequately explored and improperly waived conflict operate on the defense’s conduct? 3. The defendant was charged with killing an estranged girlfriend. On the People’s case at trial, the presiding judge admitted – over Molineux objection and without prejudice-probity balancing or limiting instruction – diary entries in which the defendant had 3 NEWYORK 8695866 v1 expressed violent thoughts and fantasies about old girlfriends after breakups many years earlier. The prosecutor purportedly offered these entries to prove motive when the only contested issue was identity, on which they had no bearing. What’s more, he did so even though it was undisputed that the ex-girlfriends were completely unharmed, and despite introducing other, unopposed entries scorning the victim herself at the very time of the murder. The prosecutor used the entries about the ex-girlfriends to argue, with no expert or lay testimony in support, that the defendant was a “misogynist narcissist” with a “violent nature,” whose “previous rejections” filled him with a “rage against women” that progressively escalated and suddenly exploded in the victim’s brutal slaying. Did the dated entries about the unharmed ex-girlfriends constitute unnecessary, irrelevant and unfounded character and 4 NEWYORK 8695866 v1 propensity evidence, denying the defendant a fair trial and warranting reversal of his conviction?1 STATEMENT OF THE CASE Paul Cortez appeals a second degree murder conviction (PL § 125.25(1)) and 25-year-to-life sentence entered in New York County Supreme Court (Berkman, J.) after a jury trial. The trial evidence, viewed in the People’s favor, allowed a rational jury to conclude that Cortez – then a 25-year-old actor, singer and fitness instructor – fatally stabbed his intermittent girlfriend, Catherine Woods, on November 27, 2005 in her Manhattan apartment. Despite its legal sufficiency, however, the evidence was neither overwhelming nor without difficulties. The underlying investigation centered on a love triangle involving Cortez, Woods – an aspiring dancer working as a stripper – and another intermittent boyfriend who lived with her, David Haughn. (A1052- 1 Though not specifically briefing them in this Court, defendant renews and preserves all other arguments and issues raised in his Appellate Division submissions. 5 NEWYORK 8695866 v1 1055, 1058-1059, 1815-1820, 1824-1825, 1878-1880, 2036, 2070-2074) At issue was the identity of Woods’s killer: Cortez, Haughn or perhaps an unidentified strip club patron. (A1204, 1487-1489, 1834-1850, 1904, 2065-66, 2179, 2274, 2288) No one witnessed the crime or implicated Cortez as the killer. The murder weapon was never found. (A1481) A functioning surveillance camera did not place Cortez at the crime scene, Haughn’s and Woods’s East 86th Street apartment. (A666-670, 672-677, 1423-1425, 1490-1491) No one interviewed by police – neighbors, doormen or anyone else – even saw Cortez in the area, much less with blood on his person. A clutch of hair found in Woods’s hands, and on and around her body, was unlike Cortez’s dark hair. (A325, 564-566, 651-652, 922, 958-959, 1355- 1359, 1362-1364, 1368-1373, 1555-1556, 2134-2135, 2296) Some of the hairs, also not from Woods, were light in color like Haughn’s, whose own hair was never scientifically tested. (A325, 1357-1375, 1495-1496) A bloody foot print found on Woods’s bed was left by a size 10½ shoe – the size both men wore. 6 NEWYORK 8695866 v1 Shortly after Woods’s murder, pinpointed at 6:25 p.m., Haughn called 911, claiming he had returned home and discovered her body. (A1088-1090, 1733-1734) When police responded to the apartment, Haughn met them outside and immediately fingered Cortez as a suspect, the two having quarreled in the past over their parallel relationships with Woods. (A397-399, 1410-1411, 1493-1494, 1820- 1824, 1878-1880) The following day, Cortez went to the police station with his mother and cooperated fully, submitting to hours of questioning and consenting to an apartment search. (A1094-1098, 1206-1211, 1221- 1222, 1502-1505, 1986-1989, 2001-2006) He also provided his cell phone, DNA samples and shoeprints, letting the officers inspect his hands and body for cuts and bruises. (Id.) There were none. (A1206) Cortez was ultimately arrested and tried, based on thin circumstantial evidence consisting of high volume calling patterns between him and Woods (A825-849, 853, 894-895, 1869-1870, 1903- 7 NEWYORK 8695866 v1 1922, 2225-2226, 2235);2 cell site records placing him in Woods’s neighborhood near the time of the murder, a fact allegedly omitted from one of his police statements (A1196-1204, 1213-1215, 1991-1996, 2031- 2034, 2039-2040, 2147, 2239); and a witness’s assertion that Cortez owned shoes consistent in size and style with the bloody footprint on the bed. (A616-622, 626-630, 971, 977, 991-1019, 1169-1176, 1594-1595, 2136, 2254) The only directly incriminating evidence was a fingerprint lifted from Woods’s bedroom wall and matched to Cortez. (A752-753, 779-782, 933-934, 964-965, 2144, 2181-2183) Attorney Dawn Florio, who handled the forensic aspect of Cortez’s defense, argued that the print had been left during one of his many past visits to Woods’s apartment during their 15-month relationship. But Florio failed to present a defense expert to challenge police testimony – some of which she herself elicited on cross-examination, thwarting the whole defense theory – 2 The record suggests, however, that Woods and Cortez called each other multiple times a day. See, e.g., A2169-2170 (summarizing phone records reflecting an average of 87 monthly calls from Woods to Cortez, lasting some 20 hours in all, over a three-month period). 8 NEWYORK 8695866 v1 that the print might have been patent (i.e., made with a visible substance like blood) instead of latent (i.e., invisible except through chemical enhancement and therefore undatable). These severe lapses respecting what Justice Berkman called a “major piece[] of evidence” against Cortez (A13) were not born of surprise or expense, counsel having received the print – and 18-B funds for forensic analysis – long before trial. (A214) Despite ample time to retain and prepare a forensic expert, cocounsel Laura Miranda repeatedly announced, as late as the first trial day, that she and Florio would “not be ready,” especially to confront the crucial forensics. (A17-18, 209-211, 214-215, 231, 235-236, 260) The lawyers were true to their word, failing to appear for the first three scheduled trial days or pursue a forensics defense, and performing dismally throughout the trial. (See A642-648, 710-711, 792-793) At the time of trial, Miranda – nominally counsel of record – had been held in contempt by Justice Berkman for her failure to appear and other misconduct in Cortez’s case. (A226-227, 238-239, 244) Florio, 9 NEWYORK 8695866 v1 meanwhile, was facing her own criminal charges – brought by the Manhattan District Attorney’s Office, the same office prosecuting Cortez – for promoting prison contraband, having allegedly smuggled drugs to a different client in jail. A232-33; People v. Florio, No. 01711- 2006 (Sup. Ct. N.Y. Co.). Yet despite prior knowledge of Florio’s predicament, the court conducted a belated and demonstrably deficient Gomberg inquiry on the second day of trial, leaving conflicted counsel to defend the critical evidence in a murder case carrying a potential life sentence. See infra POINT I. The People were also permitted to introduce Cortez’s personal journals – including entries written years before the crime that expressed violent thoughts and feelings about former girlfriends and contained sketches of knives and blood. Though none of the excerpts threatened Woods and the other women met no harm, the prosecutor told the jury they showed an escalating pattern of misogynist rage that exploded in Woods’s murder – an illicit and unsupported propensity theory dressed up with pop psychology clichés. See infra POINT III. 10 NEWYORK 8695866 v1 Affirming Cortez’s conviction, an Appellate Division, First Department panel summarily asserted – in a single cursory sentence – that the trial court “conducted a sufficient inquiry” into Florio’s conflict. People v. Cortez, 85 A.D.3d 409, 410 (1st Dept. 2011). The panel also rejected Cortez’s claim that the journal entries regarding “other women” constituted inadmissible “evidence of uncharged crimes or bad acts,” contending that they “only reflected hostile thoughts.” Id. at 411. Alternatively, the panel said the entries “had a bearing on motive and [were] not unduly prejudicial,” finding “any error” in their admission harmless “in any event.” Id. Justice Freedman added a separate opinion prompted by the panel’s determination that the prosecutor had used “excessive” but harmless “rhetoric” in summation. Id. The opinion “emphasize[d]” Justice Freedman’s “concern” with the aspect of the summation connecting Cortez’s “diary entries from 1999 and 2000 regarding former girlfriends to what happened to the victim here.” Id. at 412. Justice Freedman concluded: 11 NEWYORK 8695866 v1 The prosecutor claimed that these … entries, of questionable relevance, demonstrated that defendant had become increasingly more “hostile to women,” and that previous rejections had caused a “murderous rage” to develop in defendant. I believe that these “psychological opinions” went beyond fair comment on the evidence. Id. Cortez appeals to this Court, by permission of Chief Judge Lippman. People v. Cortez, 19 N.Y.3d 972 (2012). 12 NEWYORK 8695866 v1 ARGUMENT POINT I CORTEZ WAS DENIED THE RIGHT TO CONFLICT-FREE COUNSEL BECAUSE THE TRIAL COURT CONDUCTED A DEFICIENT WAIVER INQUIRY A. INTRODUCTION Cortez was represented at trial by two retained lawyers, Laura Miranda and Dawn Florio. (A240-41) At the time of Cortez’s trial, Florio was facing her own criminal charges, in Manhattan Supreme Court, for allegedly smuggling drugs to another client in jail. A232-33; Florio, No. 01711-2006. Despite these dubious circumstances, Florio played a significant role in presenting Cortez’s defense. Most crucially, she was responsible for combating the forensic evidence at the heart of the People’s case. There is no dispute that Florio’s concurrent prosecution – by the same district attorney’s office prosecuting Cortez – implicated her in an acute conflict of interest. The Appellate Division so found (Cortez, 85 13 NEWYORK 8695866 v1 A.D.3d at 409) and the People conceded as much below (AD1 Ans. Br. 97-98). Since the trial court was apprised of Florio’s situation (A232-33), it was obliged to “ascertain, on the record,” whether Cortez was “aware[] of the potential risks involved” in keeping her as counsel and “knowingly chose[]” to run them. People v. Gomberg, 38 N.Y.2d 307, 313-14 (1975). The reason for this rule is simple: lay defendants – even intelligent, educated ones – are “unschooled in the nature of criminal proceedings” and may not “perceive” how a conflict can undermine an attorney’s “effectiveness.” People v. Macerola, 47 N.Y.2d 257, 263 (1979). Such Gomberg inquiries, this Court has long held, must be “searching” and “thorough[].” People v. Caban, 70 N.Y.2d 695, 696-97 (1987) (footnote omitted). But what makes for a sufficiently “thorough” advisory? And what information must a conflict warning convey to render it “searching”? The Court has never defined those expansive terms or explained how trial judges are to apply them in practice. See, 14 NEWYORK 8695866 v1 e.g., People v. Lloyd, 51 N.Y.2d 107, 112 (1980) (Jones, Fuchsberg and Meyer, JJ., dissenting) (urging clarification of judge’s inquiry “responsibility”). These unanswered questions have sown pervasive confusion among the lower courts, leading trial judges to devise their own disparate waiver procedures on a case-by-case basis.3 Justice Berkman’s lament in addressing the issue here – that she “never quite know[s] what to say” to defendants about attorney conflicts – illustrates the prevailing uncertainty. (A520) 3 See, e.g., People v. De Sarno, 239 A.D.2d 74, 82-83 (3d Dept. 1998) (Mikoll, J.P., dissenting) (noting “ambiguity” of conflict waiver standard and relying instead on precedent guiding “analogous situation where an accused wishes to waive his right to counsel and proceed pro se”); People v. Hallett, 71 A.D.2d 815, 819 (4th Dept. 1979) (Schnepp, J., dissenting) (trial court failed to explore defendant’s “knowledge of the nature and consequences of her decision” to waive attorney conflict); People v. Crampe, 17 N.Y.3d 469, 477 (2011) (“extensive” 20-page “dialogue” to ensure defendant knowingly waived right to counsel); Caban, 70 N.Y.2d at 696 (“lengthy discussion” of conflict details and potential “handicap[s]”; warning that defendant “might be ‘better off’” with unconstrained attorney); People v. Griffin, 249 A.D.2d 244, 245 (1st Dept. 1998) (“detailed discussion, on the record and in defendant’s presence,” of “basis” for “potential conflict”); People v. Carncross, 14 N.Y.3d 319, 327 (2010) (independent counsel appointed to advise defendant about conflict and its implications); People v. Salcedo, 68 N.Y.2d 130, 135 (1986) (court’s role is “simply to insure through adequate warnings that the defendant’s decision has been made with awareness of his rights and the potential risks”). 15 NEWYORK 8695866 v1 The right to counsel is a “fundamental component of our criminal justice system.” United States v. Cronic, 466 U.S. 648, 653 (1984). The “means through which” all other defense rights are exercised, it is integral to due process and “essential” to securing “fair trials.” Id. at 653-54 (affects “ability to assert [all] other rights”) (citations, footnotes and internal quotes omitted); accord Powell v. Ala., 287 U.S. 45, 68-69 (1932) (right to be heard of “little avail” without “right to be heard by counsel”). And, more pointedly, the right to counsel includes a “correlative right to representation that is free from conflicts of interest.” Wood v. Ga., 450 U.S. 261, 271 (1981); see, e.g., People v. Longtin, 92 N.Y.2d 640, 644 (1998); United States v. DeFalco, 644 F.2d 132, 136 (3d Cir. 1979) (“If there is any constraint on counsel’s complete and exuberant presentation, our [adversary] system will fail because [its] basic ingredient … will be missing.”). A defendant’s decision to surrender this vital safeguard – the right to conflict-free representation – is thus fraught with consequence and not to be taken lightly. And the protocol for properly waiving it is too 16 NEWYORK 8695866 v1 important to leave to the vagaries of ad hoc improvisation. The status quo is therefore untenable and ripe for revision by this Court. While continuing to shun rote “catechism[s]”4 and “rigid formula[s],”5 the Court should introduce a measure of predictability and uniformity to this critical stage of criminal proceedings. It should take this opportunity to prescribe general guidelines – modeled on those widely used in other jurisdictions, and adaptable to the facts and circumstances of individual cases – for conducting appropriate conflict inquiries and ensuring that waivers are knowing and intelligent. The admonition in this case fell short of the minimum criteria we propose, rendering Cortez’s waiver uninformed and invalid on its face. Indeed, it was severely deficient by any standard, under this Court’s precedents or otherwise. 4 Lloyd, 51 N.Y.2d at 112. 5 Crampe, 17 N.Y.3d at 482 (citations and internal quotes omitted). 17 NEWYORK 8695866 v1 B. THIS COURT SHOULD JOIN ITS CONTEMPORARIES IN ADOPTING MINIMUM CONTENT REQUIREMENTS FOR ADEQUATE CONFLICT ADVISORIES Befitting the substantial right at stake, courts in other jurisdictions have developed more concrete and structured methods for eliciting attorney conflict waivers. E.g., Kopp v. Fischer, 811 F. Supp. 2d 696, 705 (W.D.N.Y. 2011) (noting that “the Second Circuit imposes stricter guidelines” than this Court in “determining” whether conflicts are intelligently waived). Since New York’s right to counsel is among the broadest, and this Court traditionally guards it closely,6 this incongruity is both striking and puzzling. The definitive procedure for handling attorney conflicts was laid out by the Second Circuit in United States v. Curcio, 680 F.2d 881 (2d Cir. 1982). There, the court issued a six-point roadmap for establishing valid waivers, directing trial judges to: (1) advise the defendant of his right to conflict- free representation, (2) instruct the defendant as 6 E.g., People v. Bing, 76 N.Y.2d 331, 338-39 (1990) (New York counsel right “far more expansive” than federal counterpart); People v. Cunningham, 49 N.Y.2d 203, 207 (1980) (“special solicitude” for “fundamental right” to counsel). 18 NEWYORK 8695866 v1 to the dangers arising from the particular conflict, (3) permit the defendant to confer with his chosen counsel, (4) encourage the defendant to seek advice from independent counsel, (5) allow a reasonable time for the defendant to make his decision, and (6) determine, preferably by ... questions ... likely to be answered in narrative form, whether the defendant understands the risks and freely chooses to run them. United States v. Rodriguez, 968 F.2d 130, 138-39 (2d Cir. 1992) (emphasis supplied); accord, e.g., Curcio, 680 F.2d at 888 (court must describe “dangers” of conflicted representation in as much “detail” as “experience” and case “knowledge” permit); cf. People v. Monroe, 54 N.Y.2d 35, 40 (1981) (Jones, Fuchsberg and Meyer, JJ., dissenting) (judge must inform defendant that “if he cannot afford counsel, the court will appoint counsel to advise him concerning the possibility of conflict and to represent him if a real possibility of conflict exists”). Many other courts have borrowed the Second Circuit’s blueprint, endorsing analogous versions with minor refinements. See e.g., Com. v. Goldman, 395 Mass. 495, 507-08, 480 N.E.2d 1023, 1031-32 (Mass. 1985) (judge should elicit “narrative response” to ensure defendant’s full 19 NEWYORK 8695866 v1 understanding); State v. Turner, 218 Neb. 125, 138, 354 N.W.2d 617, 625 (Neb. 1984) (adopting Curcio standard and cautioning that “most defendants are rarely sophisticated enough to evaluate potential conflicts”); Fitzgerald v. United States, 530 A.2d 1129, 1135 (D.C. 1987) (judge must explain availability of court-appointed replacement counsel); Frazier v. State, 303 S.W.2d 674, 684 (Tenn. 2010) (defendant must be told of right to “appointment of [substitute] counsel”).7 Clear-cut criteria like these, applied every day in courts across the country, have multiple virtues, offering an attractive alternative to New York’s piecemeal approach. 7 See also, e.g., State v. Cisco, 861 So. 2d 118, 133 (La. 2003) (defendant “must be told (1) that a conflict of interest exists; (2) the consequences to his defense from continuing with conflict-laden counsel; and (3) that he has a right to obtain other counsel”); Alcocer v. Sup. Ct., 254 Cal. Rptr. 72, 77 (Cal. Ct. App. 1988) (enunciating four-part test); Redd v. State, 444 S.E.2d 776, 778 (Ga. 1994) (mere assent to judge's questioning insufficient to effectively waive right to conflict- free counsel); Littlejohn v. State, 593 So. 2d 20 (Miss. 1992); State v. Kaye, 315 N.W.2d 337, 338-39 (Wis. 1982); State v. Patterson, 796 N.W.2d 516, 529 (Minn. Ct. App. 2011), aff'd, 812 N.W.2d 106 (2012); People v. Coleman, 703 N.E.2d 137, 145 (Ill. 1998); United States v. Alvarez, 580 F.2d 1251, 1259-60 (5th Cir. 1978) (defendant must be advised of right to “separate, independent counsel”; judge should “affirmatively participate” in waiver decision by eliciting narrative statement indicating that defendant “fully understands the nature of the situation and has knowingly and intelligently” chosen “to proceed with … challenged” lawyer) (citations omitted); United States v. Petz, 764 F.2d 1390, 1392-93 (11th Cir. 1985) (requiring full-blown waiver hearing). 20 NEWYORK 8695866 v1 First and foremost, they balance uniformity and flexibility, giving judges basic outlines to follow while leaving room to accommodate the unique circumstances of particular cases. See Lloyd, 51 N.Y.2d at 112 (observing that judges need a “measure of discretion” to craft targeted warnings). Second, their specificity and attention to detail better protect the accused’s valued right to conflict-free counsel, producing more informed and reliable waivers. Third, their regular and repetitive quality promotes consistency and predictability – principal goals of the rule of law. Fourth, they ease the burdens of overworked trial judges, freeing them from coming up with their own extemporaneous waiver colloquies on the spur of the moment. Fifth, they have been tested and validated through years of practice in a wealth of jurisdictions, proving effective and easy to administer. And last but not least, they curtail needless appeals like this one – challenging the colloquies that trial courts do construct – thus conserving scarce resources and fostering judicial economy. See 21 NEWYORK 8695866 v1 Monroe, 54 N.Y.2d at 40-41 (Jones, Fuchsberg and Meyer, JJ., dissenting) (keeping conflicted lawyer after proper advisory or “consultation with separate counsel” bars defendant from “raising the issue” later). Indeed, defendants in some jurisdictions are expressly told that “if convicted, [they] will not be able to complain” that the trial defense was “compromised” by counsel’s competing loyalties, the conflict waiver also waiving any right to appeal its effects. Veney v. United States, 738 A.2d 1185, 1195 n.12 (D.C. 1999); see also Turner, 354 N.W.2d at 625 (this “ounce of procedural prevention … forestall[s] the necessity of a pound of appellate cure”); United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975) abrogated on other grounds by Flanagan v. United States, 465 U.S. 259, 262 (1984) (recorded waiver colloquies further “government’s interest” by shielding convictions from appellate attack). Given these myriad advantages, this appears to be one of those instances where the benefits of implementing a modest change in procedure far outweigh the costs of maintaining the status quo. See 22 NEWYORK 8695866 v1 supra 14 & n.3. This Court should therefore follow the lead of its sisters and adopt a similar template for obtaining and appraising waivers of the right to conflict-free counsel. It is one thing to resist hamstringing judges with canned “checklist[s]” to be recited mechanically in every case. Cf. Crampe, 17 N.Y.3d at 483. It is another to leave to whim the protection of the most sacred Sixth Amendment right a criminal defendant enjoys. A middle course makes sense, and Curcio-like rigors offer tried and true benchmarks. C. THE CONFLICT ADVISORY IN THIS CASE WAS MANIFESTLY INSUFFICIENT, YIELDING AN INVALID WAIVER Measured against a Curcio-type standard – or even under this Court’s Gomberg jurisprudence – the conflict inquiry conducted here was demonstrably lacking and failed to produce a knowing and intelligent waiver. See generally Lewis v. Mayle, 391 F.3d 989, 995-97 (9th Cir. 2004) (courts must indulge “every reasonable presumption” 23 NEWYORK 8695866 v1 against waiver of right to “unimpaired assistance of counsel”) (citations and internal quotes omitted). To begin, Justice Berkman waited until the second day of trial – after jury selection, opening statements and the testimony of four witnesses – to discuss the status of Florio’s representation with Cortez. (A520-521) Since the court knew well in advance that Florio was facing her own Manhattan drug smuggling charges (A232-33, 238), the delay was inexcusable and itself erroneous. Gomberg, 38 N.Y.2d at 314 (inquiry must precede trial’s “formal commencement”); Lloyd, 51 N.Y.2d at 111 (inquiry should occur “prior to trial”).8 8 Though advised of the charges beforehand (A232-33), the court allowed Florio to participate in a critical pretrial suppression hearing without soliciting or securing any conflict waiver at all. (A25-211) Florio was actively involved in the two-day hearing, cross-examining a pair of witnesses regarding an observation of a man said to resemble Cortez and presenting legal argument. (A120-38, 163-65, 168- 92) The observation, claimed to be tainted and unreliable, proved a telling piece of “circumstantial evidence” at trial. Cortez, 85 A.D.3d at 411. Since Florio handled the observation portion of the hearing while saddled with an unwaived conflict of interest, Cortez is entitled to at least a fresh determination of the observation’s admissibility. Cf. Crampe, 17 N.Y.3d at 482-83 (ordering new suppression hearing for “deficient” counsel waiver, despite valid waiver of counsel for trial); People v. Solomon, No. 153, 2012 N.Y. Slip. Op. 07223, at *9 (Oct. 30, 2012) (ordering new suppression hearing for invalidly waived conflict). Thus, at a minimum, the case must be remanded for a new suppression hearing on that issue. 24 NEWYORK 8695866 v1 When the judge finally did raise the issue with Cortez personally, Florio was not even present in court, the subject of the conflict inquiry being characteristically late to arrive. (A521-22)9 And more troubling still, the judge limited her comments to a handful of perfunctory sentences covering fewer than two pages of transcript. Cf. Lockhart v. Terhune, 250 F.3d 1223, 1232 (9th Cir. 2001) (“swiftly” obtained waivers treated skeptically). The entirety of the ensuing exchange went as follows: [THE COURT]: First of all, Mr. Cortez, we spoke about this briefly the other day. That’s Ms. Florio’s pending matter, which Ms. Miranda tells me she’s discussed with you.[10] THE DEFENDANT: Yes. 9 Proceeding in Florio’s absence was itself a serious blunder, as it precluded the court from asking “any questions concerning her ability to represent [Cortez] effectively while [presumably] engaging in plea negotiations on her own behalf and facing … prosecution by the [same] district attorney.” Campbell v. Rice, 302 F.3d 892, 897 (9th Cir. 2002) (“Campbell II”), vacated on other grounds, Campbell v. Rice, 408 F.3d 1166 (9th Cir. 2005) (en banc) (“Campbell III”). 10 The issue had come up in colloquy between the court and Miranda during a contempt hearing held a few days earlier, after Miranda had absconded and failed to appear for the first three scheduled trial days. (A240-41) Cortez was present for at least part of the hearing and presumably privy to the colloquy (A244), but the court did not attempt a Gomberg inquiry at that time. 25 NEWYORK 8695866 v1 THE COURT: So, I never quite know what to say about that. There is an argument that in some fashion constitutes a conflict of interest, that she might, for some reason, be more interested in her own matter than yours. I’m not quite sure I see it factually, frankly. But, it really isn’t up to me to make that decision. Just as long as you understand that she has a matter that is pending here, in New York County. I don’t know what the status of the case is at this point. But, it’s particularly serious because if there were to be a conviction, she could lose her license to practice law. So I just want to make it explicit that you understand that, and you understand that’s going on, and that you wish to proceed with her, in any event. THE DEFENDANT: Yes. I do understand that. And she has not compromised this case on account of her own. THE COURT: I don’t need to you to describe that to me. Just as long as you understand that and you want to go along with that. 26 NEWYORK 8695866 v1 THE DEFENDANT: Yeah, I would love to. A520-21 (emphasis supplied). Grudging if not dismissive, the court’s remarks were the antithesis of “searching” and “thorough[,]” Caban, 70 N.Y.2d at 696, almost palpably going through the motions. See Selsor v. Kaiser, 81 F.3d 1492, 1503 (10th Cir. 1996) (cursory query makes conflict advisory an “empty ritual”). In sum, they minimized the import of any conflict and pushed Cortez to overlook it, rather than affording the knowledge, means and time for contemplation essential to an informed waiver. Contra, e.g., Lockhart, 250 F.3d at 1232. 1. No Explanation of Particular Conflict’s Dangers A defendant’s knowledge of the facts giving rise to a conflict – here, the fact that Florio was facing charges of her own – is “not enough” to establish a valid waiver. Gomberg, 38 N.Y.2d at 314. Rather, because lay defendants are “unschooled in the nature of criminal proceedings” and may not appreciate how a conflict could hinder “effective ... representation,” Macerola, 47 N.Y.2d at 263, the 27 NEWYORK 8695866 v1 court must describe the “dangers and disadvantages”11 attending the “particular conflict”12 in “as much detail as [its] experience” and case knowledge “permit.” Turner, 354 N.W.2d at 625; see also id. (recognizing that “most defendants are rarely sophisticated enough to evaluate” the possible effects of “potential conflicts”); Alvarez, 580 F.2d 11 Crampe, 17 N.Y.3d at 473. 12 Rodriguez, 968 F.2d at 139 (emphasis supplied). A noted federal judge, collaterally reviewing a decision of this Court, aptly distinguished between explaining the fact of a conflict’s existence, on the one hand, and describing its particular risks and repercussions for the defendant, on the other: “Konstantinides may have been fully informed of the [criminal] allegations against [attorney] Kasapis, but that is not the same as being informed of the problems those allegations could cause for Konstantinides’s defense at trial. The latter task is far more involved and nuanced, and it was not even attempted at Konstantinides’s trial – at least not on the record.” Konstantinides v. Griffin, No. 10-CV-05999, 2011 WL 3040383, at *6 (E.D.N.Y. July 25, 2011) (Gleeson, J.) (emphasis in original). So too here, sinking the half-hearted inquiry “attempted” at Cortez’s “trial.” Id.; accord, e.g., Lloyd, 51 N.Y.2d at 114 (Jones, Fuchsberg and Meyer, JJ., dissenting) (contrasting explanation of “fact[] of possible conflict” with adequately informing defendant of its “potential risks” and “pitfalls”) (internal quotes omitted); Lockhart, 250 F.3d at 1233 (differentiating between “alerting a defendant to a situation that could give rise to a conflict” and “warning him of the dangers of conflicted representation”) (citation, internal quotes and alterations omitted); Evans v. Raines, 705 F.2d 1479, 1480 (9th Cir. 1983) (knowing and intelligent waiver contemplates “sufficiently inform[ing]” defendant of choice’s case-specific “consequences”) (emphasis supplied). Indeed, the inquiry here was actually more suspect than that in Konstantinides, not even advising Cortez of the “allegations” against Florio. 2011 WL 3040383, at *6. 28 NEWYORK 8695866 v1 at 1260 (refusing to charge “laymen such as [defendant] with knowledge” of conflict repercussions). Justice Berkman neglected this duty, failing to “put [herself] in a position” to inform Cortez of the “true nature” of Florio’s “conflict and any effects it could have” on his “defense.” Cisco, 861 So. 2d at 134. For the court openly admitted that it didn’t “know” – and made no apparent effort to ascertain – the “status” of Florio’s “case at this point.” A521; see Cisco, 861 So. 2d at 126 (voiding waiver where trial judge said, “I can’t sit here and think of a lot of different ways that some conflict can come up.”) (internal quotation marks omitted). Instead, and perhaps as a result of this failure to “take[] appropriate steps” to educate herself, id. at 134, the judge bent over backwards to downplay any notion of conflict. Thus, the court characterized the conflict’s existence as merely “argu[able],” surmised that one “might” obtain “in some fashion” and declared, “I’m not quite sure I see it factually, frankly.” (A520-21) Straining to diminish a 29 NEWYORK 8695866 v1 conflict’s appearance defeats the purpose of conducting a Gomberg inquiry in the first place. In fact, there can be no doubt that a lawyer simultaneously charged – or even being investigated – by “the same district attorney’s office” trying her client suffers from “an actual conflict of interest.” People v. Edebohls, 944 P.2d 552, 556 (Colo. Ct. App. 1996). Courts throughout the land have held as much for years. See, e.g., Armienti v. United States, 234 F.3d 820, 824 (2d Cir. 2000); United States v. Levy, 25 F.3d 146, 157 (2d Cir. 1994); State v. Cottle, 946 A.2d 550, 560 (N.J. 2008) (“A defense attorney at the mercy of the very prosecutor’s office trying [her] client for murder has a conflict of interest.”); United States v. McClain, 823 F.2d 1457, 1463-64 (11th Cir. 1987), overruled on other grounds as recognized by United States v. Watson, 866 F.2d 381, 385 n.3 (11th Cir. 1989); United States v. Marin, 630 F. Supp. 64, 66-67 (N.D. Ill. 1986). And rightly so. After all, “[w]hat could be” a greater “conflict” for an attorney than “concern” over getting in “trouble with criminal law 30 NEWYORK 8695866 v1 enforcement authorities?” United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). The question answers itself: counsel’s “desire to avoid[] criminal” sanction presumptively infects “virtually every aspect” of her “representation.” United States v. Fulton, 5 F.3d 605, 613 (2d Cir. 1993); cf. People v. Konstantinides, 14 N.Y.3d 1, 16 (2009) (Smith, Ciparick, JJ., and Lippman, C.J., partially dissenting) (“few, if any, lawyers ... could easily disregard the possibility of disbarment or criminal proceedings against them personally, even if their client’s interests demand[] it”). What is the use of giving an admonition with one hand while figuratively taking it away – by telegraphing that a universally recognized conflict is really nothing to worry about – with the other? If that passes for an adequate Gomberg warning, then why bother issuing one at all? If such a shell of a warning is deemed adequate, in other words, it is hard to imagine one that would not be and Gomberg is a nullity. 31 NEWYORK 8695866 v1 Equally confounding was the court’s crabbed discussion of the conflict’s ramifications. The court began by throwing another bucket of cold water on the conflict’s significance, allowing that Florio “might, for some reason, be more interested in her own matter than yours.” A520 (emphasis supplied). Having diluted the prospect of conflict even further, however, the court compounded the problem by identifying only one such “reason”: the risk that Florio “could lose her [law] license” if convicted. (A521) This approach stressed the conflict’s professional consequences for the afflicted attorney (Florio) while ignoring its legal and personal consequences for the affected client (Cortez). In taking that novel tack, the court turned the proper focus of a Gomberg inquiry on its proverbial head. Cf., e.g., Cisco, 861 So. 2d at 133 (client “must be told” the “consequences to his defense from continuing with conflict-laden counsel”) (emphasis supplied); Frazier, 303 S.W.3d at 684 (defendant must receive a “full explanation” of “how this matter would affect him”) (emphasis supplied); Lewis, 391 F.3d at 995-96 (defendant must be 32 NEWYORK 8695866 v1 apprised of “full range” of conflict’s “dangers and possible consequences” in “his case”) (citations and internal quotes omitted) (emphasis supplied).13 What makes this departure so perplexing is that the client- centered consequences of a conflict like Florio’s – that of a lawyer indicted by her client’s prosecutors – are abundantly clear. Most insidious, an attorney’s self-interest in such cases could trump her allegiance to her client, breeding “failure[s]” to investigate, object and “vigorously cross-examine.” Armienti, 234 F.3d at 825. It could also cause her to “devote less time” to her representation and render her “ill- prepared” and “distracted” at trial. Id. “A lawyer in these circumstance[s,] while dealing on behalf of h[er] client with the office that is prosecuting h[er] personally may, consciously or otherwise, seek the goodwill of the office for h[er] own benefit.” Id. And that “may not always be in the [client’s] best interest.” Id.; accord, e.g., Marin, 630 F. Supp. at 66 (indicted lawyer’s 13 See also, e.g., Konstantinides, 2011 WL 3040383, at *6; Lloyd, 51 N.Y.2d at 114 (Jones, Fuchsberg and Meyer, JJ., dissenting); Lockhart, 250 F.3d at 1232; Evans, 705 F.2d at 1480. 33 NEWYORK 8695866 v1 desire to “ingratiate” herself with prosecutor’s “representatives,” or “fear of offending them” in seeking leniency for herself, may cause her to do “less than [s]he might otherwise have done for [her] client”). In such cases, conflicted counsel might be inclined to “temper” her zeal, perhaps fearing that a “spirited defense” will spur the government to pursue her own charges with “greater vigor.” Levy, 25 F.3d at 156; accord, e.g., Cottle, 946 A.2d at 559 (pending indictment may chill counsel’s “zeal to engage in a bruising battle with the very prosecutor’s office ... weighing [her] fate”). As another court puts it, a lawyer indicted by the same district attorney’s office trying her client may be “subject to the encumbrance that the prosecutor might take umbrage at a vigorous defense” and become “more ardent” in prosecuting counsel herself. Edebohls, 944 P.2d at 556; see also Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir. 1992) (Posner, J.) (contemporaneous investigation by same prosecutor’s office may “induce” lawyer to “pull [her] punches” in defending client, out of “fear” that office will be “angered by an acquittal and retaliate against the lawyer”). The 34 NEWYORK 8695866 v1 “subtlety of subconscious influence” cannot be discounted. People v. Ramos, 350 F. Supp. 2d 413, 424 (S.D.N.Y. 2004). Rudimentary legal research would have revealed these perils and pitfalls in short order.14 Yet none of them was ever mentioned to Cortez. Instead the judge pressed for an on-the-spot waiver and left them wholly unexplained,15 apparently anxious to move the trial 14 Because the perils and pitfalls are so well known, any objection to requiring more “specific” and “detailed” advisories – e.g., judicial ignorance of the “particular case” and conflict “ramifications” prior to trial, or the dangers of divulging defense “strategy” and invading the attorney-client relationship – dissolves as to a lawyer indicted by her client’s prosecutors. Lloyd, 51 N.Y.2d at 111. In any event, no one suggests that courts must clairvoyantly “predict” the “particular dilemmas” that will arise – only that they describe the “risks that are likely to develop” based on precedent and experience. Lockhart, 250 F.3d at 1232 (citations and internal quotes omitted). This task, and the concerns expressed in Lloyd, have each proven manageable in the many jurisdictions that follow the Curcio model. 15 Contra, e.g., Lewis, 391 F.3d at 996 (invalidating written waiver where “cursory discussion” failed to explain “specific ramifications” and no advice from “outside counsel”) (citation and internal quotes omitted); Lockhart, 250 F.3d at 1233 (voiding waiver where “no evidence” defendant “made aware” of conflict’s “specific ramifications”); United States v. Agosto, 675 F.2d 965, 977 (8th Cir. 1982) (same where no indication defendant “understood the possible consequences” of counsel’s “divided loyalties”), abrogated on other grounds, Flanagan, 465 U.S. 259; Belmontes v. Woodford, 350 F.3d 861, 884-85 (9th Cir. 2003) (same where defendant insufficiently informed of consequences of choice; court failed to explain that counsel’s “continuing duty of loyalty” to ex-client codefendant could clash with defense theory that codefendant was actual killer), judgment vacated sub nom. Brown v. Belmontes, 544 U.S. 945 (2005); Boldridge v. State, 215 P.2d 585, 593-94 (2009) (“vague” hearing did not explain conflict’s “nature,” upending purported 35 NEWYORK 8695866 v1 forward. Contra, e.g., Lockhart, 250 F.3d at 1232; Curcio, 680 F.2d at 889-90 (no “opportunity for deliberation” or “pause for reflection”; defendant forced to “assess” conflict “problems instantly”). 2. No Time to Consider Risks, Explanation of Alternatives or Chance to Consult Separate Counsel Beyond bypassing the case-specific risks of staying with Florio, Justice Berkman’s advisory also failed to (a) give Cortez “time to digest and contemplate”16 those risks; (b) encourage him to discuss them with outside counsel17; (c) appoint an independent lawyer for that purpose18; or (d) convey his right to the appointment of conflict-free counsel to waiver); State v. Lopez, 835 A.2d 126, 130-31 (Ct. App. Conn. 2003) (court failed to explore “specific contours” of “alleged conflict,” shelving purported waiver), aff’d on related grounds, 859 A.2d 898 (Conn. 2004); People v. Stoval, 239 N.E.2d 441 (Ill. 1968) (scrapping waiver where defendant “[in]adequately informed” of conflict’s “significance” and how it could “subtly” affect his “representation”); United States v. Allen, 831 F.2d 1487, 1500-02 (9th Cir. 1987) (similar; court “did not describe the impact” joint representation “conflict might have on pretrial proceedings” and “plea bargaining”). 16 Curcio, 680 F.2d at 889-90. 17 See, e.g., Rodriguez, 968 F.2d at 139; Turner, 218 Neb. at 137. 18 See, e.g., Carncross, 14 N.Y.3d at 327 (outside lawyer appointed to advise defendant on conflict risks). 36 NEWYORK 8695866 v1 represent him at trial.19 These lapses are especially disturbing because Cortez had previously indicated that he was unsure if he wanted to keep Miranda and Florio and needed time to make up his mind. (A231- 32, 244) This Court and others routinely caution against leaving conflict admonitions in the hands of conflicted lawyers themselves. E.g., Caban, 70 N.Y.2d at 697 (advice of “conflict-impaired attorney” not “alone sufficient” for valid waiver); People v. Baffi, 49 N.Y.2d 820, 822 (1980) (relying on conflicted attorney does not relieve court’s inquiry duty); Levy, 25 F.3d at 158 (stressing judge’s “central role” in securing waiver and warning against reliance on attorney “whose capacity to act in the defendant’s interest” is challenged). Yet Justice Berkman went a different and effectively opposite route, first “presum[ing]” and then confirming that Miranda had “discussed” Florio’s situation with Cortez – instead of meaningfully inquiring herself. (A232-33, 238-39, 520-521) 19 See, e.g., Fitzgerald, 530 A.2d at 1135; Frazier, 303 S.W.2d at 684; Monroe, 54 N.Y.2d at 40 (Jones, Fuchsberg and Meyer, JJ., dissenting). 37 NEWYORK 8695866 v1 But Miranda was beset by problems of her own. After confessing on the eve of trial that she wasn’t “ready” – particularly to counter the People’s key forensic evidence, disclosed much earlier – she fled to Puerto Rico and failed to appear for the first three scheduled trial days. (A212-49) Finding her absence contrived for purposes of delay, the court then held Miranda in contempt (A227, 239, 244) – a scenario that arguably created her own conflict of interest. Cf., e.g., United States v. Seguame, No. 94-50157, 1995 WL 115559, at *4 (9th Cir. Mar. 16, 1995); Dodson v. State, No. CR 02-1221, 2005 WL 775859, at *2 (Ark. Apr. 7, 2005); United States v. Hoslett, No. 94-56511, 1996 WL 80186, at *3 (9th Cir. Feb. 23, 1996). When Miranda finally did show up for jury selection on the fourth scheduled trial day, she brought her own lawyer with her. (A229-49) And he reiterated that she still was “not ready to proceed to trial” – this time because “she’s facing further sanctions from this honorable court.” (A231) The record suggests that the contempt weighed on Miranda throughout Cortez’s trial, as she vainly requested her own hearing and 38 NEWYORK 8695866 v1 unsuccessfully moved to vacate a day after delivering her summation. A370-371; AD1 Ans. 72-73. A beleaguered lawyer held in contempt by her client’s trial judge – and dependent on her trial partner to present a crucial forensic defense that the lawyer concededly had not prepared20 – is in no position to impartially advise the client on the pros and cons of keeping the partner as counsel. Delegating that judicial function to Miranda – without at least appointing unencumbered counsel to discuss the conflict with Cortez21 – was akin to letting the fox guard the henhouse. And it left Cortez substantially “on his own in determining whether an actual conflict of interest existed.” Cisco, 861 So.2d at 133; cf. Solomon, slip op. at 2, 9 (canceling waiver and overturning conviction – despite (a) stricken lawyer’s representation that she “disclosed” conflict to 20 In pretrial and contempt-related proceedings, Miranda told the court that Florio had been individually “retained” and was “handling an equal portion” of the “defense case,” implicitly including the pivotal forensic response. A215, 238-39; Contempt Reconsideration Mot. Ex. D. That impression was verified at trial, with Florio cross-examining the People’s fingerprint, blood, hair and footwear experts. (A633, 606, 790, 951, 1002, 1364) 21 Cf., e.g., Garcia v. Bunnell, 33 F.3d 1193, 1196-97 (9th Cir. 1994) (upholding waiver, after extensive judicial discussion of conflict, where continuance granted to seek outside advice). 39 NEWYORK 8695866 v1 defendant and he was willing to waive it, and (b) defendant’s ratification of those assertions – where judge failed to inquire “further”). 40 NEWYORK 8695866 v1 3. No Elicitation of Narrative Understanding Finally, the court also erred in failing to elicit “narrative” statements establishing that Cortez understood both the “details” of Florio’s “conflict” and the “perils” of representation by a lawyer being prosecuted by the same district attorney. Turner, 218 Neb. at 137; accord, e.g., Cisco, 861 So.2d at 133; Goldman, 395 Mass. at 507; Rodriguez, 968 F.2d at 139. In fact, when Cortez attempted to articulate his “understand[ing],” the court jumped in and cut him off, abruptly proclaiming, “I don’t need you to describe that to me.” (A521) Again, this miscue is especially troubling in light of Cortez’s earlier reservations about continuing with Miranda and Florio. A231-32, 244; compare Allen, 831 F.2d at 1500 (spurning waiver of “right to separate counsel” extracted after defendant “twice gave equivocal answers”; judge “should not have left” ultimate assent “unexamined”). *** In sum, the conflict advisory at hand suffered from three terminal defects. First, it failed to explain the particular dangers attending 41 NEWYORK 8695866 v1 Florio’s pending indictment or the available alternatives to keeping her as counsel. Second, it afforded Cortez an inadequate opportunity to consider those dangers or discuss them with an independent attorney. And third, it failed to elicit Cortez’s narrative understanding of how Florio’s conflict threatened his right to a zealous and effective defense. In view of these assorted infirmities, the inquiry was patently deficient, inducing an invalid waiver and calling for a remedy. See supra n.15 and cases cited. “[In]adequately informed” of the conflict’s “significance” for him, Cortez simply “did not know what he was giving up by retaining [Florio’s] counsel.” Lockhart, 250 F.3d at 1233 (citation and internal quotes omitted).22 22 Cortez’s bare assertion that Florio had “not compromised this case on account of her own” warrants little discussion. (A521) As indicated, the court failed to explain the specific risks of Florio’s indictment or establish that Cortez understood them narratively. Absent those precautions, a lay defendant would not appreciate how the conflict could subtly hamper Florio’s representation – consciously or unconsciously – or even know what “compromise[s]” to look for. See, e.g., Macerola, 47 N.Y.2d at 263; Ramos, 350 F. Supp. 2d at 424 (“subtlety of subconscious influence” cannot be discounted). And again, the colloquy occurred on the second morning of trial. So even if Cortez genuinely believed that Florio’s preparation had not been inhibited – and even if that belief deserved any weight – he could not predict how the conflict might “compromise[]” her performance going forward. Cf. Mickens v. Taylor, 535 U.S. 162, 193 n.3 (2002) (Souter, J., dissenting) (“a judge who gets wind of conflict during trial may have to enquire in both 42 NEWYORK 8695866 v1 POINT II THE DEFICIENT CONFLICT INQUIRY WAS A STRUCTURAL OR MODE OF PROCEEDINGS ERROR WARRANTING AUTOMATIC REVERSAL OF CORTEZ’S CONVICTION – OR AT LEAST A HARMFUL ERROR MANDATING REVERSAL ON THE FACTS A. INTRODUCTION This Court has yet to settle on a consistent remedy for absent or inadequate waiver inquiries where, as here, the trial court is on notice of an attorney conflict. Some of the Court’s decisions reverse automatically where the unexamined or inadequately examined conflict is deemed an actual one. See e.g., People v. McDonald, 68 N.Y.2d 1, (1986); People v. Mattison, 67 N.Y.2d 462 (1986); People v. Allah, 80 N.Y.2d 396 (1992). directions: prospectively to assess the risk of conflict if the lawyer remains in place” and “retrospectively to see whether a conflict has actually affected the defendant adversely”) (citation omitted) (emphasis supplied). At any rate, Cortez could not have known whether Florio’s preparation had been “compromised” because he was jailed pending trial. 43 NEWYORK 8695866 v1 Other decisions would likewise reverse automatically where the conflict at issue – again explored inadequately or not at all – was merely significantly possible. See e.g., Monroe, 54 N.Y.2d at 39; People v. Crump, 53 N.Y.2d 824, 825 (1981); Baffi, 49 N.Y.2d at 822; People v. Solomon, No. 153, 2012 N.Y. Slip. Op. 07223, at *5 (Oct. 30, 2012) (citations omitted). And still others, involving significantly possible as well as potential conflicts, will not reverse for missing or ailing Gomberg advisories unless the conflict affected counsel’s representation or operated on her conduct of the defense. See e.g., People v. Konstantinides, 14 N.Y.3d 1, 10-11 (2009); Longtin, 92 N.Y.2d at 644- 45;People v. Recupero, 73 N.Y.2d 877, 879-80 (1988); cf. People v. Alicea, 61 N.Y.2d 23, 32 (1983) (Cooke, C.J., concurring) (criticizing this standard as ill-defined and functionally identical to actual prejudice requirement). Pinning the validity of a criminal conviction on a patchwork of obscure semantic distinctions seems arbitrary and impracticable. It 44 NEWYORK 8695866 v1 also yields a shifting standard of appellate review that is difficult to discern and apply. In our view, a faulty Gomberg inquiry – and a consequently invalid waiver of the fundamental right to conflict-free counsel – are “structural defects in the constitution of the trial mechanism,” affecting the very “framework within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). In New York parlance, they represent a “significant departure from the organization of the court or the mode of proceedings prescribed by law,” People v. O’Rama, 78 N.Y.2d 270, 271 (1991) – “fundamental flaws”23 that impair the “essential validity of the process”24 and “irreparably taint[]” the “entire trial.” People v. Patterson, 39 N.Y.2d 288, 295 (1976). The appropriate remedy, therefore, is automatic reversal of an ensuing conviction – without a showing of prejudice or resort to harmless error analysis – for all plausible conflicts that a court on 23 People v. Becoats, 17 N.Y.3d 643, 651 (2011). 24 People v. Kelly, 5 N.Y.3d 116, 119 (2005). 45 NEWYORK 8695866 v1 notice fails to examine or examines deficiently. See e.g., People v. Mehmedi, 69 N.Y.2d 759, 760 (1987); cf. Puckett v. United States, 556 U.S. 129, 141 (2009). Since it is undisputed – indeed indisputable – that Florio’s deficiently examined and improperly waived conflict was at least a plausible one,25 it follows that Cortez deserves a new trial with an unencumbered attorney. Alternatively, and at a minimum, reversal is also required because the conflict operated on Florio’s representation and adversely affected her conduct of Cortez’s defense. See, e.g., People v. Konstantinides, 14 N.Y.3d at 10; Longtin, 92 N.Y.2d at 644. B. OVERVIEW OF STRUCTURAL AND MODE OF PROCEEDINGS ERROR 1. Structural Error In a line of cases stretching back to 1991, the Supreme Court has identified a “limited class” of errors that affect the “framework within 25 See Cortez, 85 A.D.3d 409; AD1 Ans. Br. 97-98. 46 NEWYORK 8695866 v1 which the trial proceeds.” United States v. Marcus, 130 S. Ct. 2159, 2164-65 (2010) (citations and internal quotes omitted). Examples include denials of the right to counsel, self- representation and public trial26; biased factfinders and racially rigged grand juries27; defective reasonable doubt instructions28; constructively amended indictments29; and, most salient here, erroneous deprivations of the right to counsel of choice.30 These “structural defects in the constitution of the trial mechanism,” Fulminante, 499 U.S. at 309-10, are so elemental and profound that they “necessarily render a criminal trial fundamentally unfair [and] an unreliable vehicle for determining guilt or innocence.” Puckett, 556 U.S. at 141 (structural errors vitiate the “entire 26 Gideon v. Wainwright, 372 U.S. 335 (1963); McKaskle v. Wiggins, 465 U.S. 168 (1984); Waller v. Ga., 467 U.S. 39 (1984). 27 Tumey v. Ohio, 273 U.S. 510 (1926); Vasquez v. Hillery, 474 U.S. 254 (1986). 28 Sullivan v. Louisiana, 508 U.S. 275 (1993). 29 Stirone v. United States, 361 U.S. 212 (1960). 30 United States. v. Gonzalez-Lopez, 548 U.S. 140 (2006). 47 NEWYORK 8695866 v1 adjudicatory framework”) (citations and internal quotes omitted); Neder v. United States, 527 U.S. 1, 8 (1999) (structural errors “infect the entire trial process”). Because the “benefits” of the rights underlying structural errors are “frequently intangible, difficult to prove, or a matter of chance,”31 the “consequences” of their denial are generally “unquantifiable and indeterminate,” Gonzalez-Lopez, 548 U.S. at 150, and the “effect[s]” of their loss hard to “assess,” Marcus, 130 S. Ct. at 2165 (citation, internal quotes and alteration omitted), or “ascertain[.]” Vasquez, 474 U.S. at 263. Given their abstract and intangible nature, structural defects thus “defy” harmless error “analysis,” Gonzalez-Lopez, 548 U.S. at 148-49 (citations and internal quote omitted), and are “presumed prejudicial,” United States v. Olano, 507 U.S. 725, 735 (1993), compelling per se reversal of a subsequent conviction. See Neder, 527 U.S. at 8 (structural defects “defy harmless error review”). 31 Waller, 467 U.S. at 50 n.9. 48 NEWYORK 8695866 v1 2. Mode of Proceedings Error New York’s structural error “analogue” is known as mode of proceedings error. See Gary Muldoon, Understanding New York’s “Mode of Proceedings” Muddle, 59 Buff. L. Rev. 1169, 1173 & n.25 (2011) (“Muldoon”); People v. Udzinski, 541 N.Y.S.2d 9, 14 (2d Dept. 1989); People v. Gray, 86 N.Y.2d 10, 21 (1995) (mode doctrine “forbid[s] alteration of mandated procedural, structural, and process-oriented standards”) (internal quotations omitted). Like structural defects, mode errors comprise a “limited” range of mistakes “going to the very organization of the court or at such basic variance with the mode of procedure mandated by law that they impair the essential validity of ... criminal proceedings.” People v. Voliton, 83 N.Y.2d 192, 195 (1994); see, e.g., Kelly, 5 N.Y.3d at 120 (“circumscribed class”); id. at 119-120 (“narrow category” of “fundamental” errors impacting process’s “essential validity” and “irreparably” tainting “entire trial”); People v. Agramonte, 87 N.Y.2d 765, 770 (1996) (“fundamental defects”). 49 NEWYORK 8695866 v1 Mode errors, too, are “intrinsically prejudicial,” exempt from harmless error analysis and require automatic reversal of a connected conviction. People v. Jackson, 78 N.Y.2d 638, 654 (1991) (Titone, J., dissenting); see also Mehmedi, 69 N.Y.2d at 760-61; People v. Miller, 73 A.D.3d 1435, 1436 (4th Dept. 2010). Prominent examples include mishandling notes from deliberating juries; a judge’s absence at critical stages of trial and improper delegations of judicial responsibility. O’Rama, 579 N.E.2d at 189; People v. Ahmed, 487 N.E.2d 894 (1985). C. THE TRIAL COURT’S FAULTY WAIVER COLLOQUY CONSTITUTES STRUCTURAL OR MODE OF PROCEEDINGS ERROR MERITING BLANKET REVERSAL Absent or insufficient Gomberg inquiries – yielding unwaived or invalidly waived rights to conflict-free counsel – fit comfortably within the universe of structural defects and mode of proceedings errors, dictating per se reversal of Cortez’s conviction. 50 NEWYORK 8695866 v1 1. Automatic Reversal in These Circumstances Accords with Supreme Court Precedent Glossed by New York Law First, until fairly recently,32 the Supreme Court had consistently held that failure to “make an inquiry” and obtain a “valid waiver,” when the judge knows or “should know” that a “particular conflict” exists, “mandates a reversal.” Wood, 450 U.S. 261, 272-74 & n.18 (1981) (quoting Cuyler v. Sullivan, 446 U.S. 335, 347 (1980) and Holloway v. Ark., 435 U.S. 475 (1978)) (internal quotation marks omitted). Since New York’s right to counsel is broader than its federal counterpart, and because a deficient waiver inquiry is tantamount to no inquiry at all, that rule should prevail in our state. See supra POINT I; Recupero, 73 N.Y.2d at 881 (Titone and Hancock, JJ., dissenting) (New York law historically more “protective” of “right to conflict-free representation” than federal standard). 32 See Mickens, 535 U.S. 162 (reversal for failure to inquire, despite actual or constructive notice, generally requires showing that conflict adversely affected counsel’s performance). 51 NEWYORK 8695866 v1 2. Automatic Reversal in These Circumstances Is Logically Dictated by the Recognition of Chosen Counsel Denials as Structural Error Second, the Supreme Court’s post-Mickens decision in Gonzalez- Lopez33 argues strongly for elevating deficient conflict advisories – and concomitantly uninformed waivers – to the pantheon of structural defects or mode of proceedings errors. Writing for the Court in Gonzalez-Lopez, Justice Scalia had “little trouble concluding that [an] erroneous deprivation of the right to counsel of choice[34] ... qualifies as structural error.” 548 U.S. at 150 (citation and internal quotes omitted). The Sixth Amendment right to counsel of choice commands “not that a trial be fair,” he reasoned, “but that a particular guarantee of fairness be provided – to wit, that the accused be defended by the counsel he believes to be best.” Id. at 146. 33 At least one court has suggested that Mickens and dependent cases are in logical tension with Gonzalez-Lopez. See State v. Sam, 907 A.2d 99, 111-12 n.13 (Conn. 2006). And another court in the same jurisdiction held that a flawed conflict inquiry compromised a trial’s “structural integrity” and reversed automatically despite Mickens – before Gonzalez-Lopez was even decided. Lopez, 835 A.2d at 133 (“Lopez I”), aff’d on related grounds, 859 A.2d 898 (“Lopez II”). 34 See Macerola, 47 N.Y.2d at 267 (acknowledging “right of every [non- indigent] defendant to select counsel of his choice”) (Gabrielli, J., and Cooke, C.J., dissenting). 52 NEWYORK 8695866 v1 This guarantee is violated and the violation is “complete,” Justice Scalia continued, when the defendant’s ability to make the choice is “wrongly denied” – that is, when he is “erroneously prevented” from selecting “the lawyer he wants.” Id. at 146-48 (internal quotes omitted); see also Carncross, 14 N.Y.3d at 332-33 (deprivation “‘complete’ at the time the defendant is erroneously prohibited from being represented by the counsel of his choice”) (Lippman, C.J., and Pigott and Smith, JJ., dissenting) (quoting Gonzalez-Lopez, 548 U.S. at 148, 150). “No additional showing of prejudice is required” and the “violation is not subject to harmless-error analysis.” Gonzalez-Lopez, 548 U.S. at 140, 152. Instead, the “erroneous deprivation” itself “entitles [defendant] to a reversal of his conviction.” Id. at 142; see also Flanagan, 465 U.S. at 267-68 (prejudice unnecessary because right protects defendant’s “free choice” irrespective of proceeding’s “objective fairness”). 53 NEWYORK 8695866 v1 a. A Flawed Conflict Advisory Functionally Denies the Right to Choose Counsel and Demands the Same Remedy Just as the right to counsel includes correlative rights to representation that is effective35 and free from conflicts of interest,36 the right to counsel of choice necessarily contemplates a decision that is knowing and intelligent and a “fair opportunity” to make it. Powell, 287 U.S. at 53 (defendant entitled to “fair opportunity to secure counsel of ... choice”). And a fortiori, a decision cannot be knowing or intelligent unless the defendant both appreciates its risks and repercussions and understands his options and alternatives. In turn, a defendant can neither appreciate those risks and repercussions, nor understand his options and alternatives, unless the judge adequately explains them to him. People v. Payton, 2012 N.Y. Slip Op. 07701, 2012 WL 5503817, at *13 (2d Dept. Nov. 14, 2012) (Miller, J., dissenting) (“right to select” counsel connotes an “informed decision[]” and “disclosure” necessary to make one). An uninformed choice, in short, is no real choice at all. Cf., 35 See Strickland v. Wash., 466 U.S. 668 (1984). 36 See Wood, 450 U.S. at 271; Longtin, 92 N.Y.2d at 644. 54 NEWYORK 8695866 v1 e.g., Campbell v. Rice, 265 F.3d 878, 887 (9th Cir. 2001) (“Campbell I”) (“single, open-ended question not an inquiry into a conflict of interest”); Solina v. United States, 709 F.2d 160, 168-69 (2d Cir. 1983) (no material difference between lack of representation and representation by unlicensed attorney). It follows, then, that an inadequate judicial explanation impairs a defendant’s ability and opportunity to make a meaningful, informed decision. And an impaired ability and opportunity to decide – or at least to decide intelligently – eviscerates if not eradicates the right to choose counsel altogether. A constructive denial by such insufficient advisory logically demands the same result as an actual one: automatic reversal, with no further harm required. See Gonzalez-Lopez, 548 U.S. at 146-48 (violation “complete” upon erroneous deprivation) (internal quotes omitted); cf., e.g., Cronic, 466 U.S. at 659 (no difference between “complete denial of counsel” and counsel who “entirely fails to subject the prosecution’s case to meaningful adversarial testing”). Any lesser remedy is unsatisfactory, as “post hoc rationalization” of a court’s 55 NEWYORK 8695866 v1 “failure to make [contemporaneous] inquiry” carries a “substantial risk of unreliability.” Monroe, 54 N.Y.2d at 40 (Jones, Fuchsberg and Meyer, JJ., dissenting). A post-Mickens dissenting opinion by two judges of the Ninth Circuit, sitting en banc, anticipated Gonzalez-Lopez’s reasoning and illustrates our point. When a court on notice conducts an inadequate conflict inquiry, the authors observed, it “prevent[s]” a defendant from “obtaining basic information” that would “enable[] him to make an informed decision” whether to keep the afflicted lawyer or “seek new, unbiased defense counsel.” Campbell III, 408 F.3d at 1178 (Ferguson and Reinhardt, JJ., dissenting). Put another way, an ailing inquiry “denie[s a] fair opportunity to obtain the very facts that would enable [a defendant] to secure other counsel of his choice.” Id. at 1177. The functional “effect” of this procedural “violation,” the authors concluded, is to impede the exercise of defendant’s “constitutional right” to “select counsel of [his] choice” – an error that is “per se prejudicial, structural” 56 NEWYORK 8695866 v1 and “requires automatic reversal.” Id. at 1173, 1175-76 (emphasis omitted). That is our position on remedy in a nutshell. After all, how can an accused make a considered “request to retain substitute counsel without knowing ... vital information” about “current counsel[’s]” conflict and how it could hamper his defense at trial? Id. at 1177 n.6. Plainly, he cannot. See also, e.g., Campbell I, 265 F.3d at 890 (“absence” of “meaningful inquiry” is “structural error,” casting “so much doubt” on trial process’s “fairness” that it can “never be considered harmless”) (citation and internal quotes omitted); Lopez I, 835 A.2d at 133 (deficient conflict inquiry impugned trial’s “structural integrity,” warranting presumption of prejudice and mandatory reversal). 3. Deficient Conflict Inquiries Have Intangible Effects That Are Impossible to Quantify Third, the benefits attending a probing and detailed conflict admonition – and a correspondingly informed and intelligent waiver – are abstract, “intangible” and “difficult to prove.” Waller, 467 U.S. at 50 n.9. And their loss has “[im]measurable,” Sullivan, 505 U.S. at 281, 57 NEWYORK 8695866 v1 “unquantifiable” implications emblematic of structural defects and mode of proceedings errors. Gonzalez-Lopez, 548 U.S. at 150. a. Individual Autonomy Is an Abstract Virtue, and the Effects of Its Denial Cannot Be Measured Objectively When a defendant knowingly and voluntarily waives a conflict after a comprehensive Gomberg inquiry, appellate review sensibly trains on how, if at all, the conflict affected the representation. Cf. Mickens, 535 U.S. at 202-03, 207-08 (Souter, J., dissenting). But when the conflict is inadequately explained and the waiver invalid in consequence, the accused suffers a qualitatively different injury: he is denied the right to intelligently choose the lawyer who defends him. Cf. Faretta v. Cal., 422 U.S. 806, 834 (1975) (accused “must be free ... to decide” who represents him because he, “not his lawyer or the State, will bear the personal consequences of a conviction”). What is lost in that instance is the very right to make the choice, an adjunct of the greater values of dignity and autonomy. Id. (extolling “respect for the individual” as the “lifeblood of the law”) (citation and internal quotes omitted). Since the virtues associated with dignity and 58 NEWYORK 8695866 v1 autonomy – with self-determination and free choice – are abstract and inestimable by definition, showing concrete “prejudice” from their absence would be difficult if not “impossible.” Owens v. United States, 483 F.3d 48, 64-65 (1st Cir. 2007). These realities make impact-oriented scrutiny inappropriate and harmless error analysis inapplicable, the damage being both intangible and complete on occurrence – i.e., the moment the right of informed choice is infringed by the deficient inquiry. Conversely, structural or mode review is the only method of appellate scrutiny that logically fits these circumstances. b. Improperly Examined Conflicts Incalculably Affect A Defendant’s Representation Similarly elusive and “indeterminate” are the strategic and tactical “consequences” flowing from “erroneous deprivation of the right to counsel of choice.” Gonzalez-Lopez, 548 U.S. at 150 (citation and internal quotes omitted). As Justice Scalia elaborated for the Gonzalez- Lopez court: 59 NEWYORK 8695866 v1 Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the framework within which the trial proceeds – or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless- error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe. *** A choice-of-counsel violation occurs whenever the defendant’s choice is wrongfully denied. ... To determine the effect of wrongful denial of choice of counsel, ... we would not be looking for mistakes committed by the actual counsel, but for differences in the defense that would have been made by the rejected counsel in matters ranging from questions asked on voir dire and cross- 60 NEWYORK 8695866 v1 examination to such intangibles as argument style and relationship with the prosecutors. We would have to speculate upon what matters the rejected counsel would have handled differently or indeed, would have handled the same but with the benefit of a more jury-pleasing courtroom style or a longstanding relationship of trust with the prosecutors. And then we would have to speculate [untenably] upon what effect those different choices or different intangibles might have had. Id. at 150-51 (citation and internal quotes omitted) (some emphasis supplied); cf., e.g., DeFalco, 644 F.2d at 138-39 (“impossible for anyone to know” whether conflicted “attorney’s tactical decisions, counseling of his client, or [] arguments to the court were adversely affected”). The same considerations apply here, where Justice Berkman (a) impaired Cortez’s ability to intelligently decide whether to engage conflict-free replacement counsel, by (b) inadequately describing the dangers of keeping the conflict-ridden Florio. Harmless error analysis is equally misplaced in this context, it being likewise “impossible to know what different choices” an unencumbered substitute lawyer would have made; whether switching would have sparked “differences in the 61 NEWYORK 8695866 v1 defense”; or what “matters” successor “counsel would have handled differently” – and then to “quantify the impact” of all those hypothetical differences on the proceedings’ “outcome.” Gonzalez-Lopez, 548 U.S. at 150-51. More precisely, insufficiently examined – and thus improperly waived – conflicts make it “difficult” to “determine” whether counsel’s colliding interests “affected ... decisions” on issues like avenues of investigation; “witnesses to call”; impeachment to “undertake”; jury arguments to “make”; and “basic strategy to adopt.” Mickens, 535 U.S. at 210 (Breyer and Ginsburg, JJ., dissenting); see id. at 203 (Souter, J., dissenting) (“failures on the part of conflicted counsel ... elude demonstration after the fact,” as they “often consist of what did not happen”) (citation omitted). For these reasons – i.e., the “significant likelihood” and formidable “difficulty” of proving “subtle” prejudice from poorly examined conflicts – the “cost of litigating [its] existence” in a “particular case” is “[un]justified” and reversal should be “categorical.” Id. at 210-11 62 NEWYORK 8695866 v1 (Breyer and Ginsburg, JJ., dissenting); accord, e.g., Campbell I, 265 F.3d at 888 n.5 (hindrance “incapable of measurement” because “evil” lies in what counsel must “refrain from “doing”) (citation and internal quotes omitted); Macerola, 47 N.Y.2d at 265 (conflicted representation “suspect” for what it “prevents” counsel from “doing”) (citation and internal quotes omitted). Indeed, to “require a specific showing of harm” in these circumstances would “defy the very purpose and nature of the structural error doctrine,” cf. Lopez II, 859 A.2d at 906, calling for “unguided speculation,” Holloway, 435 U.S. at 491, about “what might have occurred in an alternate universe.” Gonzalez-Lopez, 548 U.S. at 150; see Lopez I, 835 A.2d at 132 (“virtually impossible” to “assess” “impact” of carelessly examined conflict on attorney’s “options, tactics, and decisions”) (citations and internal quotes omitted); Payton, 2012 WL 5503817, at *10 (Miller, J., dissenting) (“pervasive effect” of “personal influences” – as when counsel “subject” to “ongoing investigation” by same district attorney – on “entire scope of 63 NEWYORK 8695866 v1 representation” inhibits reviewing courts’ “ability” to “detect their impact” on trial) (citation and internal quotes omitted). 4. Automatic Reversal in These Circumstances Vindicates Essential Institutional Interests Fourth, it bears emphasis that faulty conflict advisories raise important systemic concerns that transcend the individual defendant or case at hand. As the Supreme Court has made clear, judges have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. ... Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by [conflicted counsel]. Wheat v. United States, 486 U.S. 153, 160 (1988). Such overriding interests, rooted in higher social values divorced from the merits of any given case, are bellwethers of structural or mode review, being consummately “intangible” and “unquantifiable.” Gonzalez-Lopez, 548 U.S. at 149-50 & n.4 (citations and internal quotes omitted); see, e.g., Rose v. Clark, 478 U.S. 570, 587 (1986) (Stevens, J., 64 NEWYORK 8695866 v1 concurring) (harmless error analysis inappropriate where right abridged protects “important values” unrelated to trial’s “truth-seeking function”); Waller, 467 U.S. 39 (open trial guarantee, implicating public’s interest under First Amendment as well as defendant’s under Sixth, held structural in nature). Deficient conflict inquiries, after all, may fuel “revelation[s]” that a “trusted advocate” could not “place” her client’s interest above her own. Mickens, 535 U.S. at 207 n.12 (Souter, J., dissenting). And such a perception would shatter “public confidence in the professionalism of lawyers” – “regardless” of a discrete trial’s “outcome.” Id; accord People v. Abar, 99 N.Y.2d 406, 412 (2003) (Smith, J., dissenting) (“public at large” deserves “protection” from “appearance of impropriety” and “risk of prejudice” attending attorney “abuse of confidence”) (citation and internal quotes omitted); Payton, 2012 WL 5503817, at *14 (Miller, J., dissenting) (similar) (citing People v. Shinkle, 51 N.Y.2d 417, 421 (1980)). 65 NEWYORK 8695866 v1 5. Automatic Reversal in These Circumstances Advances Public Policy and Serves A Valuable Deterrent Purpose Fifth, automatic reversal when a judge on notice inadequately inquires into a “risk of conflict” makes good policy sense, fostering a “coherent scheme” of “incentives to judicial vigilance.” Mickens, 535 U.S. at 194, 202 (Souter, J., dissenting). The judge’s “independent” inquiry “duty” is fundamentally “preventive.” Id. at 205-06. Its whole point is to warn defendants of the dangers of nascent attorney conflicts before they have a “chance” to crystallize with “adverse result[s]” – viz., “illusory” representation, “formal trial[s]” that waste “time, emotion” and “public money,” and “costly after-the-fact litigation.” Id. at 203, 207-08. The “specter” of automatic “reversal” for desultory warnings makes the inquiry duty “concrete” and encourages judges to take it seriously, “keep[ing] their eyes peeled” for lawyers who “play loose with loyalty to their clients and the [cardinal] guarantee of a fair trial.” Id. at 205; see also Monroe, 54 N.Y.2d at 41 (Jones, Fuchsberg and Meyer, JJ., dissenting) (“instances in which” Gomberg rule “honored in the breach” require “no less” than “mandatory reversal” for derelictions). 66 NEWYORK 8695866 v1 By contrast, compelling a defendant to prove ex post “effects” when the judge knew of the “risk[s]” but “did nothing” – when the risks were “clear and avoidable” by “reasonabl[e] vigilan[ce]” – is inequitable if not “[in]tolera[ble].” Mickens, 535 U.S. at 203, 208 (Souter, J., dissenting). It would “reduce[]” the “judicial duty to enquire” to a “matter” of “so many empty words,” devoid of “sanction” and “ceas[ing] to be any duty at all.” Id. at 202, 207; see Campbell III, 408 F.3d at 1177 n.6 (Ferguson and Reinhardt, JJ., dissenting) (urging per se reversal “when the state” deprives defendant of “material information essential to the exercise of his Sixth Amendment rights”). 6. Automatic Reversal in These Circumstances Comports with State and National Precedent Sixth, many decisions from this Court and others37 – without explicitly labeling them structural defects or mode of proceedings errors 37 See, e.g., Lopez I, 835 A.2d at 132 (reversing without prejudice inquiry for trial court’s failure to conduct a “thorough and searching inquiry,” as it was “impossible to determine what role [conflict] played in the making of strategic choices during trial”), aff’d on related grounds, 859 A.2d 898 (Conn. 2004); Cottle, 946 A.2d at 552 (finding “per se conflict” and presuming prejudice when both attorney and “client are simultaneously under indictment in the same county and being prosecuted by the same prosecutor’s office,” without “an informed waiver 67 NEWYORK 8695866 v1 – apply a per se reversal rule to missing or deficient conflict inquiries and equivalent infractions. Cf., e.g., Muldoon, 59 Buff. L. Rev. at 1172 (“certain issues found unpreserved yet reversible have not been termed mode of proceedings errors”); Geders v. United States, 425 U.S. 80 (1976) (automatically reversing for overnight ban on counsel consultation without calling error structural). In Crampe, for example, this Court recently reversed a conviction automatically and ordered a new trial – with no prejudice showing or resort to harmless error analysis – where a defendant was “[in]adequately advised of the dangers and disadvantages” of waiving counsel and representing himself. 17 N.Y.3d 469, 472 (2011). Since the “constitutional right to counsel” at stake in Crampe ranks as structural and includes a subsidiary right to conflict-free representation, the case serves as an instructive parallel. Id. at 481. made in court and on the record”); People v. Hernandez, 896 N.E.2d 297, 303, 305 (Ill. 2008) (per se conflict requiring automatic reversal without prejudice showing, Mickens notwithstanding, when defense counsel has “contemporaneous association” with prosecution). 68 NEWYORK 8695866 v1 This Court should therefore draw guidance from its own precedent in the comparable setting here. See Monroe, 54 N.Y.2d at 40 (Jones, Fuchsberg and Meyer, JJ., dissenting) (Gomberg “queries ... of a kind with those” required when defendant wishes to “proceed pro se,” both being “rooted in the key role the right to counsel plays [in] our adversary system”); Curcio, 680 F.2d at 886 (likening election to “forgo counsel entirely” to waiver of conflict-free “representation”). That is, the Court should adopt a similar bright line reversal rule for inadequate advice on the “dangers and disadvantages” of waiving conflict-free counsel and keeping a lawyer hobbled by dueling loyalties. Crampe, 17 N.Y.2d at 472; cf. People v. Wandell, 75 N.Y.2d 951 (1990) (reversing automatically for unexamined and unwaived conflict – concurrent representation of chief prosecution witness in unrelated civil case – never raised with court by defense counsel or prosecutor). As Prof. LaFave observes, any other approach would distill “the issue” to “whether counsel could have done more than ... she did, which 69 NEWYORK 8695866 v1 seems always to be the case.” 3 LaFave, Criminal Procedure § 11.9(d), at 940 (3d ed. 2007). *** For all these reasons, the Court should add flawed conflict warnings to the class of structural errors deemed inimical to the proper mode of judicial proceedings, reversing Cortez’s conviction automatically – without requiring him to establish prejudice or undertaking harmless error review.38 38 The presence of a second defense lawyer does not alter this conclusion. As discussed in POINT I, Miranda faced her own arguable conflict arising from her contempt citation by the trial judge for misconduct in this very matter. And in apparent consequence of Miranda’s contempt and admitted unpreparedness, Florio handled the entire response to the People’s vaunted forensic evidence, playing a central role at trial. Compare, e.g., Stoia v. United States, 22 F.3d 766, 770 (7th Cir. 1994) (despite representation by team of three unconflicted attorneys, defendant’s Sixth Amendment rights could be compromised by conflicted representation of fourth attorney who did not file notice of appearance) with, e.g., Triana v. United States, 205 F.3d 36, 42 (conflicted associate counsel played negligible trial role; unconflicted lead counsel actually conducted defense) and Elfgeeh v. United States, 681 F.3d 89 (2d Cir. 2012) (licensed attorney of record, disbarred lawyer in behind- the-scenes advisory role) and People v. Konstantinides, 14 N.Y.3d at 10-13 (wholly unconflicted lead lawyer; adequate off-record inquiry presumed as to potentially conflicted “second attorney”). 70 NEWYORK 8695866 v1 D. REVERSAL IS ALTERNATELY WARRANTED BECAUSE THE INADEQUATELY WAIVED CONFLICT OPERATED ON FLORIO’S REPRESENTATION AND ADVERSELY AFFECTED CORTEZ’S DEFENSE Even if this Court finds that reversal for an inadequately waived conflict requires a showing of “operat[ion] on the defense,” such a showing need only be “minimal.” People v. Konstantinides, 14 N.Y.3d at 10. A “defendant does not have to establish that the conflict affected the outcome,” id., or point to “specific prejudice,” People v. Ennis, 11 N.Y.3d 403, 411 (2008), as all the “circumstances surrounding the situation may be taken into account.” Id. Put another way, if “events would have unfolded differently” had the defendant been represented by a different attorney, then the conflict operated on the defense. People v. DiPippo, 82 A.D.3d 786 (2d Dept. 2011). Considering all the circumstances here – i.e., all of Florio’s gaffes and her general lack of zeal – the record amply demonstrates that her conflict “operated on the defense.” A few examples follow. 71 NEWYORK 8695866 v1 To begin, Florio and her cocounsel failed to appear on Cortez’s behalf for the first three scheduled trial days because they were admittedly unprepared. (A219, 221-28) Leaving her client literally unrepresented is proof positive of Florio’s less-than-zealous advocacy. To compound the impact of their absence, when Florio and cocounsel finally did appear, they drew judicial rebukes for ignoring court orders and wasting the jury’s time. (AD1 Op. Br. 25) At a minimum, had Cortez been represented by different counsel who would perform the most basic tasks – like showing up for trial – that counsel would not have drawn such rebukes, leaving him or her in higher regard with the court. Next, Florio’s principal role in the case was to handle the forensics, a job she bungled at every turn. First, although the direct testimony of the People’s fingerprint experts, Chacko and Branigan, established that the print found at the crime scene was latent – i.e., an undatable print that could have been left at any time – Florio elicited from Chacko on cross-examination that the print could have been made 72 NEWYORK 8695866 v1 in blood, indicating that it was patent – i.e., left by Cortez during the murder. (A685-88, A710-11, A791-95, A809-814, A933-34, A964-65) Florio later allowed a non-expert witness, Detective Entenmann, to volunteer on cross-examination that he had seen a “patent” print on the bedroom wall. (A642-43) Chacko’s expert testimony and Entenmann’s corroboration hurt the defense. Had Florio conducted even a rudimentary investigation into the distinction between latent and patent, she likely would have been more careful during her cross-examination. Florio did not adequately prepare to combat this evidence, as she apparently failed to consult a fingerprint expert – or call one of her own – even though Justice Berkman had approved the use of public funds for that very purpose. (A214-215) Second, again despite public funds allocated by the court, Florio neglected to offer or investigate forensic evidence regarding the hair found in Woods’s hands. Because the hair was similar in color to that of Woods’s live-in boyfriend David Haughn, and dissimilar to that of 73 NEWYORK 8695866 v1 Cortez, it offered potentially exculpatory evidence without any risk. Florio’s inaction allowed the prosecutor to argue that no hair evidence linked Haughn to the crime, implicating Cortez as the default killer. See generally (A325, 564-566, 651-652, 922, 958-959, 1355-1359, 1362- 1364, 1368-1373, 1555-1556, 2134-2135, 2296) Third, Florio elicited from the People’s footwear impressionist that a bloody footprint left at the scene matched the same model of shoes – the Skechers Cool Cat Bully Two – that a witness, Spenser Lebowitz, claimed Cortez was wearing shortly after the murder. By their own account, Florio and Miranda were unaware that Lebowitz had identified the shoe model Cortez supposedly wore that night even though the information had been produced in discovery. Counsel’s excuse for this oversight was that they had not had a “chance” to review the information. See generally (A616-622, 626-630, 971, 977, 991-1019, 1169-1176, 1594-1595, 2136, 2254) As these actions and inactions reveal, Florio’s conflict concretely manifested itself in significant “events” at trial. People v. Ortiz, 76 74 NEWYORK 8695866 v1 N.Y.2d 652 at 657 (1990). Likely overwhelmed by the combined weight of her own criminal investigation and her representation of Cortez, Florio was unprepared for every task she was asked to handle. Her generally lackluster performance and collective blunders unequivocally operated on Cortez’s defense. E. CONCLUSION The trial court’s structurally defective conflict advisory was a mode of proceedings error compelling blanket reversal of Cortez’s conviction, without a showing of prejudice or resort to harmless error analysis. Alternatively, a new trial is warranted because Florio’s insufficiently examined and invalidly waived conflict affected the operation of Cortez’s defense. 75 NEWYORK 8695866 v1 POINT III THE TRIAL COURT REVERSIBLY ERRED IN ADMITTING DATED WRITINGS AND DRAWINGS EXPRESSING CORTEZ’S VIOLENT THOUGHTS AND FANTASIES ABOUT UNHARMED EX- GIRLFRIENDS – WITHOUT MOLINEUX ANALYSIS, PREJUDICE-PROBITY BALANCING, LIMITING INSTRUCTION, OR EVIDENTIARY FOUNDATION FOR THE JUNK SCIENCE PROPENSITY THEORY THEY LAUNCHED A. INTRODUCTION At trial, the People moved to introduce, on their direct case, “books” of Cortez’s “writings” containing what the prosecutor described as “diary entries,” song lyrics, poems, drawings and “stream of consciousness ramblings.” (A300-301, 522-529, 745-748) Some of the proffered excerpts expressed “antagonism” toward the victim, Cortez’s intermittent “girlfriend” Catherine Woods, near the time of her late 2005 murder. Cortez, 85 A.D.3d at 411. We “do[] not challenge” the admission of those excerpts. Id. 76 NEWYORK 8695866 v1 Also proffered, however, were entries vilifying other women, Barbara “Boo” Killebrew and Amanda Sywak, following breakups many years earlier. (A525, 529, 1584) Those entries were tendered despite a prosecution confession that their content was largely “fantasy,” and notwithstanding a stipulation that the women met no harm. (Id.) Cortez did and does challenge the admission of these concededly “distant” excerpts. (A525) The People offered the challenged excerpts for “context,” as well as to show Cortez’s evolving “state of mind” and to illustrate a supposed “progression” in his “thinking.” (A526-527) More precisely, the prosecutor said, the excerpts displayed a growing hostility to women who “disappointed” Cortez and a mounting anger after “broken love affairs,” providing a “relevant connection to what happened to Catherine Woods.” (A526) Cortez objected, arguing that the excerpts were prejudicially remote “propensity” evidence barred by People v. Molineux, 168 N.Y. 264 (1901). (A522-529, 745-748, 1457) Justice Berkman disagreed, 77 NEWYORK 8695866 v1 finding Molineux inapplicable and admitting the challenged excerpts – without specifying their relevance, weighing any probative value against prejudicial effect or giving a limiting instruction. (A745-748) The Appellate Division affirmed, likewise finding Molineux inapplicable “because the entries only reflected hostile thoughts.” Cortez, 85 A.D.3d at 410-11. The entries also bore on “motive,” that court opined, characterizing them as neither “unduly prejudicial” nor sufficiently harmful to warrant reversal. Id. The challenged entries were lurid and inflammatory. See, e.g., Leave Opp. 5 (claiming “journals were littered with references to death” and exhibited a “particular fascination with knives and cut throats”). Representative samples, in the People’s own words, include the following: [I]n 1999 and 2000, [five to six years before Woods’s murder,] defendant described “Boo” as “poisonous” and “dangerous” and wrote that he would not be the “victim” or the “martyr anymore.” He drew a picture of a man with a sword and wrote a poem containing allusions to a 78 NEWYORK 8695866 v1 knife touching the skin.[39] In entries from 2001 and 2002, [three to four years before Woods’s murder,] defendant described Amanda as a “sly whore” who was “fucking around.” He expressed “pent up rage” that Amanda was sleeping with another man but added that he was “unable to kill” and “unable to find retribution.” Defendant described himself as a “monster” who “dwelled” on “thoughts of revenge.” On Feb[.] 13, 2004, [almost two years before the murder,] defendant drew a person of uncertain gender with a knife in his or her back. Id. 6 (citations and alterations omitted) (emphasis supplied); see also A1467 (Oct. 2001 “dagger” drawing), 1468-1469 (Amanda “fucking random guys” in Oct. 2001), 1470 (wishing death on Amanda and new lover in Nov. 2002). The prosecutor read these sensational selections to the jury on the People’s case, as substantive proof of guilt, before Cortez took the stand or offered any evidence of his own. (A1461-1462) But the prosecutor did not stop there. He also seized on the excerpts in cross-examining Cortez and delivering his opening and closing arguments. Most 39 See A1466 (May 2000 “fantas[y]” poem mentioning “Deciding on the knife,” “Skin versus metal” and “Vein versus blade”). 79 NEWYORK 8695866 v1 pernicious, he used the passages to savagely attack Cortez’s character, painting him as a “violent” and disturbed “narcissist” who hated women and was primed to kill one after years of rejection. (E.g., A2268, 2278, 2300) Right out of the gate, for example, the People’s opening statement urged: The defendant had over the last few years become obsessed with other women [objection overruled] who also after a time fled his obsessive ways and ended contact with him. And he would turn on them little by little until he actually reached the point where he fanaticized [sic] about violence against them. Gradually his internal [objection overruled] rage grew and unfortunately for Catherine Woods, she was the woman on whom his thoughts of violence turned to action. *** Extracts from a few of these books will allow you to glimpse into the defendant’s mind.... [T]hey are sometimes bizarre, sometimes pathetic, but ultimately very frightening. These extracts will reveal the defendant’s growing frustration, rage [and] anger.... (A284, 300-301) 80 NEWYORK 8695866 v1 These journal-based themes only intensified throughout the trial proper, peaking in the prosecutor’s incendiary summation. A few illustrations: The writings that I’m most concerned about are his drawings of knives and soft [sic] poems.... These are stories. They are just doodling.... But, the problem is he’s doodling and writing stories about knives.... It’s about knives. When he doodles, he doodles about knives.... So, you have to ask yourself then, is all this just a coincidence? *** It doesn’t work out with Boo. She dumps him.... Then Boo becomes poisonous. Remember what he writes ...? “She’s poisonous” and “she’s dangerous....” [H]e’s failed at love, and it changes his view of things. Now he’s a person who’s a little bit more angry than he was before.... It’s a progression. Then we have Amanda.... He falls madly in love with Amanda, and he’s crazy about Amanda; and then she sleeps with one of his friends. What does he write about Amanda ... after she sleeps with one of these other guys? He writes about his rage, his desire for retribution, that he wants them dead, and he’s angry at himself because he can’t kill them. Now, that is not a normal reaction. It’s a lot more extreme in 2002 than it was with Barbara Killebrew.... [H]is attitude towards women and his failure towards women is escalating, is getting worse and worse as he fails.... [H]e’s getting more and more 81 NEWYORK 8695866 v1 violent; okay.... In his secret diaries there’s a lot of rage against women. And that’s the important thing. Because by the time he meets Catherine Woods, he’s O for four or O for five in trying to get successful relationships with women. [Objection overruled.] *** Couple that [estrangement from Woods] with all his previous rejections, you just have to say to yourself it’s like a volcano where the person you are is building up, building up and building up; and the volcano seems passive, dormant; and then, all of a sudden, boom; there’s a huge explosion. That explosion in this case was murderous rage. And Catherine Woods just happened to be in the wrong place at the wrong time. A2266-2267, 2276-2278, 2285-2286 (emphasis supplied).40 These excessive liberties with the challenged excerpts drew a sharp rebuke from Justice Freedman in a separate Appellate Division opinion. In particular, Justice Freedman faulted “the aspect of the 40 See also, e.g., A2195 (“complete disrespect for women and ... their role in our society”), 2268 (“songs betray his violent nature”), 2285 (“incredible narcissistic vanity”; “vain to the empth degree”), 2286 (“look at what he wrote in his diary, [] look at the kind of person he is”) (emphasis supplied), 2287 (“[t]alk about narcissism”), 2288 (“if that isn’t narcissism, I don’t know what is”), 2299 (“She probably doesn’t understand why he did it. She’s not reading his secret diaries.”), 2300 (“misogynist narcissist [who] couldn’t handle rejection anymore”). 82 NEWYORK 8695866 v1 prosecutor’s summation” that tied Cortez’s “diary entries from 1999 and 2000 regarding former girlfriends to what happened to the victim here.” Cortez, 85 A.D.3d at 412. Based on these “questionabl[y] relevan[t]” entries, the separate opinion observed, the prosecutor claimed that Cortez had become increasingly more “hostile to women,” and that previous rejections had caused a “murderous rage” to develop in [him]. I believe that these “psychological opinions” went beyond fair comment on the evidence. Id. Admitting the challenged excerpts was harmful error that denied Cortez a fair trial and demands reversal of his conviction. First, courts across the nation overwhelmingly analyze evidence of prior bad thoughts commensurately with proof of prior bad acts. The trial judge thus made mistakes of law in refusing to apply Molineux scrutiny, failing to balance any probative value attending the excerpts against their enormous prejudicial effect, and declining to limit the purposes for which the jury could properly consider them. These abuses of discretion 83 NEWYORK 8695866 v1 drain any deference the judge’s ruling might otherwise enjoy and alone compel reversal. Second, even if Molineux analysis had been conducted, Cortez’s motive to injure Woods – despair and anger over their relationship’s demise – was undisputed, and the excerpts were irrelevant and inadmissible on the sole issue contested at trial: the assailant’s identity. Third, even if motive had been disputed, the People laid no evidentiary foundation – through expert testimony or otherwise – for the prosecutor’s pseudoscientific conjecture that latent hostility over past romantic failures is likely to progressively escalate and suddenly explode in “murderous rage” against a target of opportunity after years of dormancy. (See, e.g., A284, 300-301, 2276-2278, 2285-2286, 2299- 2300) Fourth, even assuming an appropriate foundation, the challenged excerpts had little or no legitimate probative force because they were cumulative of other evidence – including contemporaneous journal entries admitted without objection – directly establishing Cortez’s 84 NEWYORK 8695866 v1 “antagonism” toward Woods herself. Cortez, 85 A.D.3d at 411. Diminishing their probity even further, the challenged entries were written several years earlier, concerned entirely different women and consisted of inchoate thoughts and fantasies that were never acted out. Fifth, absent any legitimate probative worth, it follows that the challenged entries could only have constituted “disguised propensity” evidence, People v. Hudy, 73 N.Y.2d 40, 56 (1988) – or at least that the risk of the jury so construing them dwarfed any marginal probity they might have had. And that was exactly the inference the prosecution urged, using the entries to deplore “the kind of person [Cortez] is” – a violent-natured, “misogynist narcissist [who] couldn’t handle rejection anymore.” (E.g., A2268, 2286, 2300) The result was a trial that invited the jury to “judge[]” Cortez by “who he” was rather than “what he” was claimed to have “done,” Turpin v. Kassulke, 26 F.3d 1392, 1417 (6th Cir. 1994) (Feikens, Sr. D.J., concurring and dissenting) – one that encouraged punishment for the type of “person” he was said to be rather than the “acts” he was accused 85 NEWYORK 8695866 v1 of committing. Masters v. People, 58 P.3d 979, 1012 (Colo. 2002) (en banc) (Bender and Martinez, JJ., and Mullarkey, C.J., dissenting). That is precisely what Molineux forbids. Reversal and retrial are therefore required. B. THE CHALLENGED EXCERPTS FAIL MOLINEUX SCRUTINY AND SHOULD HAVE BEEN EXCLUDED 1. Molineux-Like Strictures Govern the Admissibility of Prior Bad Thoughts Evidence Admitting extrinsic act evidence – proof that a defendant committed other crimes or wrongs unrelated to the offense with which he is charged – is notoriously “delicate business.” People v. Resek, 3 N.Y.3d 385, 389 (2004). For it is fundamental that this sort of evidence may “improperly divert the jury” from its sworn duty: determining the defendant’s guilt or non-guilt of the crime on trial. Id. More specifically, the primary risk is that the jury will “overestimate” the other act’s “significance,” Hudy, 73 N.Y.2d at 55 (citations omitted), and “convict a defendant because of his past,” People v. Alvino, 71 N.Y.2d at 241 (1987), impermissibly inferring that he “did 86 NEWYORK 8695866 v1 it before, so he probably did it this time too,” Hudy, 73 N.Y.2d 56 (internal quotes omitted) – or, worse yet, that he “deserves punishment anyway, whether he did it or not.” Id. at 72 (Wachtler, C.J., and Simons and Bellacosa, JJ., dissenting); see Alvino, 71 N.Y.2d at 248 (“firmly embedded” that defendant “cannot be convicted of a crime because he committed the same crime before”) (Hancock and Titone, JJ., dissenting). For these reasons, extrinsic act evidence is categorically “inadmissible” if offered solely to suggest that the defendant has a “criminal disposition,” People v. McKinney, 24 N.Y.2d 180, 184 (1969), proof that “A. shot B. at one time and place throw[ing] no [legitimate] light upon the charge that A. [later] poisoned C.” People v. Katz, 209 N.Y. 311, 328 (1913); see, e.g., People v. Richardson, 137 A.D.2d 105, 107-08 (3d Dept. 1988) (warning of “unacceptable danger” that jury “might condemn defendant because of ... past criminal behavior” and “not because he is guilty of the offense charged”) (citations omitted). 87 NEWYORK 8695866 v1 This Court’s Molineux doctrine – New York’s Fed. R. Evid. 404(b) analogue, Alvino, 71 N.Y.2d at 256-57 & n.6 (Hancock and Titone, JJ., dissenting) – implements the general ban on evidence of extrinsic acts by requiring the proponent to satisfy a rigorous “two-part” test. Hudy, 73 N.Y.2d at 55. At the outset, the proponent must identify some issue, other than mere criminal propensity, to which the evidence is relevant. Once such a showing is made, the court must go on to weigh the evidence’s probative worth against its potential for mischief to determine whether it should ultimately be placed before the fact finder. Hudy, 73 N.Y.2d at 55 (citations omitted). Additional considerations include the proponent’s “need for the evidence,” Alvino, 71 N.Y.2d at 242, and whether the “point” for which it is offered is truly in “dispute[].” Hudy, 73 N.Y.2d at 70 (Wachtler, C.J., and Simons and Bellacosa, JJ., dissenting). This Court has never directly addressed the appropriate admissibility framework for evidence of a defendant’s written thoughts – and, in particular, whether this form of evidence is subject to the 88 NEWYORK 8695866 v1 same type of strictures as proof of uncharged acts. The Court’s prior cases, however, strongly intimate that it is. In a case involving a “militant antipolice document[]” written by a suspected cop shooter, for example, the Court acknowledged that the document “reflected on the defendant’s character” and analyzed it accordingly, finding it “properly admitted” to show the crime’s “motive,” People v. Moore, 42 N.Y.2d 421, 424, 428-29, 433 (1977) – a traditional Molineux exception. E.g., Alvino, 71 N.Y.2d at 241-42 (listing “motive” as a potentially “relevant” Molineux purpose); cf. People v. Steiner, 30 N.Y.2d 762 (1972) (decedent wife’s diary entries improperly admitted to show defendant husband’s murder motive 10 weeks later). More recently, the Court assumed that a defendant’s “statement” to an earlier rape victim – to the effect that the current complainant was lucky she wasn’t there or it would have been her – failed Molineux scrutiny and was erroneously admitted to prove “motive and future intent” regarding the rape at hand. People v. Jackson, 8 N.Y.3d 869, 870 & n.* (2007); cf., e.g., People v. Bradley, No. 201, 2012 WL 5845017, 89 NEWYORK 8695866 v1 Slip Op. 07858 at 3, 9 (Ct. App. N.Y. Nov. 20, 2012) (analyzing verbal “admission” to “prior stabbing” under Molineux, and noting that another stabbing threat was proffered and presented under Molineux below); People v. Spence, 92 A.D.3d 905, 906 (2d Dept. 2012) (“violent” tattoos analyzed as “bad character” evidence); Richardson, 137 A.D.2d at 108-09 (diary referencing defendant’s prior bad acts treated as Molineux evidence); People v. Wachtel, 124 A.D.2d 613, 615 (2d Dept. 1986) (undated diary “inadmissible” to establish defendant’s “state of mind at or near the time of the crimes”). Courts across the country – dispelling Justice Berkman’s and the Appellate Division’s bare assertions to the contrary – have gone a step further, making explicit what common sense suggests and New York precedent implies. Proof of a defendant’s “verbal” or “artistic” expression, these courts concur, is often “functionally equivalent to character or propensity evidence” and must be analyzed commensurately, the very act of writing being a species of extrinsic “act.” Andrea Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, 90 NEWYORK 8695866 v1 and Criminal Evidence, 31 Colum. J. L. & Arts 1, 4, 10, 28-29, 40-41 (2007) (“Dennis”); accord, e.g., Lenora Ledwon, Diaries and Hearsay: Gender, Selfhood, and the Trustworthiness of Narrative Structure, 73 Temp. L. Rev. 1185, 1218 (2000) (“Ledwon”) (deeming “recording” itself an “intellectual act”) (citation and footnote omitted); State v. Eastwood, 850 A.2d 234, 246 n.5 (Conn. App. 2004) (committing thoughts to “writing” a form of “conduct”). A New Jersey opinion issued just last summer illustrates the point, aptly explaining: Although writing about evil things and expressing evil thoughts is not a bad act, this court and the Supreme Court have recognized that when a defendant’s writing reflects his bad acts or a propensity to act badly, Evidence Rule 404(b) applies. State v. Crumb, 307 N.J. Super. 204, 231 (App. Div.1997) (assuming that Evidence Rule 404(b) limits the use of a defendant’s racist writings because the jury could interpret the writing “to constitute other wrongs or acts”), certif. denied, 153 N.J. 215 (1998); see State v. Koskovich, 168 N.J. 448, 482–84 (2001) (relying on Crumb and considering whether Evidence Rule 404(b) required exclusion of a rap lyric written by defendant because there was “at 91 NEWYORK 8695866 v1 least some basis to consider [the rule’s] implication”). Considering the content of the[] lyrics [at issue here] ..., there is no question that Evidence Rule 404(b)’s purpose was implicated. It is an understatement to say that, as in Crumb, a jury could infer that the author of these rap lyrics, defendant, was a bad person who not only believed in addressing people who cross him by killing them but also had done that in the past as he so vividly describes in his lyrics. *** [W]here there is no evidence that defendant has committed acts he has described in his lyrics, the predicate question for the court is whether a jury could determine, on the evidence presented, whether the type of lyric written demonstrates the author’s motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident or some other specific point relevant to a material issue in dispute. N.J.R.E. 404(b). State v. Skinner, 2012 WL 3762431, at*4, *9 (N.J. Super. App. Div. Aug. 31, 2012) (footnote omitted) (emphasis supplied). Iowa’s highest court echoes these conclusions, recognizing that “any suggestion” that the acts described in a defendant’s journals “be committed carries nearly as much potential for causing an unwarranted 92 NEWYORK 8695866 v1 propensity inference as would the completed acts. We therefore view the journals in this light in determining [Rule 404’s] exclusionary force.” State v. Barrett, 401 N.W.2d 184, 188 (Iowa 1987) (emphasis supplied); accord In re J.A.L., 694 N.W.2d 748, 752 (Iowa 2005) (“Journal entries can be other-acts evidence under rule []404(b).”). Another court in Connecticut has joined the chorus, agreeing that a defendant’s journal writings – mixing dreams, wishes, fantasies and actual narratives of past events – amounted to “evidence of prior uncharged crimes,” properly scrutinized under Rule 404(b). Eastwood, 850 A.2d at 243 n.2; accord, e.g., People v. Hilton, No. 254002, 2005 WL 1489494, at *2 (Mich. App. June 23, 2005) (notebook of defendant’s lyrics was “other acts evidence, properly considered under [Rule] 404(b)”) (footnote omitted); People v. Hoffman, 570 N.W.2d 146, 147, 149 (Ct. App. Mich. 1997) (“evidence that defendant hates women and previously ... acted on such hostility” subject to Rule 404(b)).41 41 Other state cases to similar effect include: Masters, 58 P.3d at 984, 994-1004 (defendant’s “graphic” and “repulsive” writings and drawings, revealing misogynist fascination with “death by stabbing or slicing,” analyzed as putative “character evidence” under Rule 404(b)); State v. Hanson, 731 P.2d 1140, 1144 n.7 93 NEWYORK 8695866 v1 The weight of authority thus holds – sensibly enough – that proof of a defendant’s evil thoughts poses the same character and propensity risks as evidence of evil deeds and should be treated similarly. Indeed, evil thoughts evidence – especially in the form of “writings and drawings” – is arguably even more perilous and less probative than its (Ct. App. Wash. 1987) (defendant’s “fictional writings” properly analyzed as character evidence under Rule 404(b)); State v. Johnson, 643 N.E.2d 1098, 1105-06 (Ohio 1994) (proof of defendant’s “hatred and contempt for women” analyzed as character evidence under Rule 404); Houser v. State, 823 N.E.2d 693, 697-98 & n.8 (Ind. 2005) (noting “consequential” claim that song lyrics “written or favored by a defendant” are character evidence subject to rigors of “Evidence Rule 404(b)”); People v. Goldsberry, 630 N.E.2d 1113, 1115-16, 1118 (Ct. App. Ill. 1994) (notebooks of defendant’s drawings, poems and lyrics analyzed as “other crimes” evidence); Cook v. State, 45 S.W.3d 820, 824-25 (Ark. 2001) (defendant’s rap lyrics analyzed under Rule 404(b) as “Prior Bad Acts”); State v. Tolson, No. 0211007845, 2005 WL 147918 (Del. Super. Ct. Jan. 3, 2005) (similar); Woods v. State, 13 So.3d 1, 23-26 (Ala. Ct. Crim. App. 2007) (violent drawing and lyrics analyzed under Rule 404(b) as putative character evidence). Representative federal cases include: Boyd v. San Fran., 576 F.3d 938, 946-50 (9th Cir. 2009) (lyrics showing anti-police bias analyzed under Rules 403 and 404(b) as “Prior Bad Acts”); United States v. Foster, 939 F.2d 445, 450, 455-57 (7th Cir. 1991) (notebook verse suggesting knowledge of drug trade, “defendant’s own [fictional,] literary or artistic work,” analyzed under Rule 404(b) as “evidence of other acts or crimes”); Turpin, 26 F.3d at 1398-1401 (high school diary entry expressing accused spouse killer’s lust for money analyzed under Rule 404(b) as proof of “other crimes, wrongs, or acts”) (internal quotes omitted); United States v. Cvijanovich, 556 F.3d 857 at 860-61, 864 (8th Cir. 2009) (journal entries referencing defendant’s prior threats against president analyzed under Rule 404(b) as “evidence of other crimes, wrongs, or acts” in prosecution for threatening president some years later); United States v. Houston, 205 F. Supp. 2d 856, 865 & n.6 (W.D. Tenn. 2002) (lyrics “expressing [defendant’s] knowledge of or affinity for the possession or use of various handguns” subject to Rule 404(b)). 94 NEWYORK 8695866 v1 physical counterpart. Masters, 58 P.3d at 1009 (Bender and Martinez, JJ., and Mullarkey, C.J., dissenting). For it often “reflect[s]” idle “fantasies” that never ripen into concrete “‘acts,’” potentially meriting an even stricter standard. Id. Given the sound national consensus on this score, Justice Berkman’s refusal to evaluate the challenged diary entries under Molineux – and the Appellate Division’s one-sentence affirmance of her refusal – were clear errors of law. A trial court inherently abuses its discretion where, as here, it “improperly applies the law or uses an erroneous legal standard.” E.g., United States v. Chambers, 441 F.3d 438, 455 (6th Cir. 2006) (citations omitted); see generally Koon v. United States, 518 U.S. 81, 98, 100 (1996). Consequently, and because there was no initial Molineux analysis or prejudice-probity balancing to which this Court might otherwise defer, reversal is mandated on this ground alone. See, e.g., Hudy, 73 N.Y.2d at 55 (identifying “specific” non- propensity purpose for Molineux evidence “poses a question of law,” 95 NEWYORK 8695866 v1 while “weighing process is discretionary”) (citing Alvino, 71 N.Y.2d at 242). 2. Even Assuming an Initial Molineux Analysis, the Challenged Excerpts Had No Bearing on Any Material Issue in Dispute To pass Molineux muster, extrinsic acts or thoughts evidence must speak to an issue that is genuinely “contest[ed],” McKinney, 24 N.Y.2d at 185, or “really disputed.” Hudy, 73 N.Y.2d at 70 (Wachtler, C.J., and Simons and Bellacosa, JJ., dissenting).42 And in defending “a statement’s admission on appeal,” the People are limited to the Molineux admissibility theories they “advance[d] at trial.” Jackson, 8 N.Y.3d at 870 n.* (citation omitted). 42 In the context of diaries and other writings, see, e.g., Masters, 58 P.3d at 997 n.3, 1001 (court must ask whether “fact” in question is “being disputed”; “uncontested nature” lessens “need for” and “prob[ity] of” extrinsic evidence on point) (citations and internal quotes omitted); Skinner, 2012 WL 3762431, at *1, *5, *9 (404(b) evidence must go to material issue “genuinely in dispute”) (citation and internal quotes omitted); Tolson, 2005 WL 147918, at *2 (must bear on fact or issue “dispute[d] in the case”); Dennis, 31 Colum. J. L. & Arts at 12 (court should consider “extent to which” point to be proved is “disputed”). 96 NEWYORK 8695866 v1 a. Motive Obvious and Undisputed; Issue Was Identity Here, the People chiefly offered the challenged entries to show Cortez’s “motive for murdering” Woods (A301), and the Appellate Division sustained their admission on that rationale, 85 A.D.3d at 411. See A2271, 2275-2278, 2285-2286 (lengthy summation argument, springing from “secret diaries,” that “escalating” anger, violence and “rage against women” over past romantic failures moved Cortez to kill Woods). This prosecution thesis, however, was a classic strawman. For motive was never in dispute at trial, Cortez having denied committing the crime at all. See generally Masters, 58 P.3d at 986, 1002 (motive for most homicides “fairly obvious”). To amplify, this was not a case involving, say, an ideologically based offense43 or an “otherwise incomprehensible” act of violence against a “random” stranger, where the jury would have wondered why 43 Cf., e.g., Moore, 42 N.Y.2d at 428-29, 438; Boyd, 576 F.3d at 944-45, 949. 97 NEWYORK 8695866 v1 the defendant did it without some external explanation.44 The question, rather, was whether Cortez killed Woods – not why he would have done so if he did. Cf., e.g., Alvino, 71 N.Y.2d at 256 (Hancock and Titone, JJ., dissenting) (given defendant’s flat “denials,” issue was “whether” – not “why” – he “took the money”; guilt “inescapable” if he did). If Cortez was the killer, the reason for his actions – evidenced by his relentless calls and unchallenged writings expressing “antagonism” toward Woods herself, Cortez, 85 A.D.3d at 411 – was as plain as day. As the People themselves conceded below, “anger” over the Oct. 2005 “breakup” drove Cortez to allegedly “commit the brutal, vengeful” slaying, fueling “within” him the “sort of rage necessary to” do it. AD1 Ans. 56, 58. The trial thus distilled to the single question of who murdered Woods – Cortez, Woods’s live-in lover and Cortez’s romantic rival David Haughn, or somebody else, perhaps a patron of the strip clubs where 44 Cf., e.g., Masters, 58 P.3d at 998-99; Hoffman, 570 N.W.2d at 149-50; Crumb, 649 A.2d at 882; Hanson, 731 P.2d at 1144-45; Goldsberry, 630 N.E.2d at 1117; Koskovich, 776 A.2d at 163; Skinner, 2012 WL 3762431, at *6. 98 NEWYORK 8695866 v1 Woods worked. The issue, in short, was the culprit’s identity – not Cortez’s motive if he was the killer. Cf., e.g., Skinner, 2012 WL 3762431, at *5 (“improper” to justify “use of other-crime evidence” for issue “not really” in dispute) (citation and internal quotes omitted). b. Challenged Excerpts Irrelevant to Identity But the challenged excerpts had no logical bearing on that contested issue. First, according to the excerpts themselves, Cortez had the same impetus to harm old flames Boo and Amanda – anger over romantic splits – as he did Woods at the time of her murder. The real question, as just explained, was whether he acted out that undisputed impetus against Woods on this occasion. To make that proposition “more ... probable” – i.e., to help identify Cortez as Woods’s assailant – the People thus would have needed proof that he previously acted out the same impetus against Boo or Amanda. People v. Scarola, 71 N.Y.2d 769, 777 (1988) (defining relevant evidence).45 If the prosecution wanted to establish an “escalating” 45 Cf., e.g., Skinner, 2012 WL 3762431, at *7 (“lyrics could not be used to identify defendant” where “no evidence” he “did any of the acts he wrote about”) 99 NEWYORK 8695866 v1 progression of “violen[ce]” that “explo[ded]” in “murderous rage,” that is, it at least had to show that Cortez incrementally attempted to injure Boo or Amanda – if not actually kill one of them – in the past. (A2276- 2278, 2285-2286) Yet nothing in the challenged excerpts – or anywhere else – indicates that he ever did so, the People having stipulated that neither woman met any harm. If anything, Cortez’s prior restraint despite his common motive made it “less probable” that he would suddenly resort to violence against Woods after the breakup in this instance, weakening rather than strengthening the inference of identity. Scarola, 71 N.Y.2d at 777 (emphasis supplied). (emphasis supplied); Masters, 58 P.2d at 1006 (Bender and Martinez, JJ., and Mullarkey, C.J., dissenting) (to rebut defendant’s accident claim, prosecution would have needed evidence of actual “uncharged crimes”); Hoffman, 570 N.W.2d at 109 (“evidence that defendant hates women and previously had acted on such hostility establishes more than character or propensity”) (emphasis supplied); S. P. Wilson, Rap Sheets: The Constitutional and Societal Complications Arising from the Use of Rap Lyrics as Evidence at Criminal Trials, 12 UCLA Ent. L. Rev. 345, 363 (2005) (“Wilson”) (calling poetry a “medium to describe emotions instead of acting them out,” and contrasting “potential or capacity to kill” given “dark and hidden feelings” with “actually threaten[ing] to do so”) (citations, footnotes and internal quotes omitted); People v. Jovanovic, 263 A.D.2d 182, 194-95 (1st Dept. 1999) (New York Rape Shield Law distinguishes “fantasies,” thoughts and “desires,” on one hand, from “actions” on the other). 100 NEWYORK 8695866 v1 To make the challenged excerpts probative on the trial’s sole disputed issue, in sum, actions would have spoken louder than words. “By suggesting” that Cortez’s “character conformed to the violent acts [imagined] in his writings, the State [thus] supplied the jury with an [unnecessary and] improper explanation for why” he “would have committed the crime charged.” Hanson, 731 P.2d at 1144-45. Second, the admissibility criteria for identity evidence are more stringent than those governing proof of motive and the other Molineux exceptions. E.g., Cook, 45 S.W.2d at 824; Koskovich, 776 A.2d at 164. To come in for identity purposes, prior acts or thoughts must be so “strikingly similar” to the charged offense that they share a distinctive “methodology,” unique “modus operandi” or peculiar criminal signature. E.g., Cook, 45 S.W.2d at 824; Barrett, 401 N.W.2d at 189; Hanson, 731 P.2d at 1144 n.7; J.A.L., 694 N.W.2d at 753 (“[s]imilarity or uniqueness” prevents “identification” based on “forbidden inference of propensity”). Here, the challenged excerpts merely expressed generally aggressive wishes and fantasies about Boo and Amanda, never realized 101 NEWYORK 8695866 v1 or carried into action. They also contained stray “doodles” and “poems” depicting implements variously described as blades, daggers, knives and swords, with no apparent connection to the two women or Cortez’s hostile feelings concerning them. A1466-1467, 2266-2267; Leave Opp. 5-6. Singly or collectively, these cryptic musings and drawings bore little objective resemblance to the brutal stabbing of a different woman many years later – and certainly not enough of one to establish the requisite signature.46 Again, our position finds support in New Jersey’s State v. Skinner, a recent attempted murder case uncannily reminiscent of this one. 46 Compare, e.g., J.A.L., 694 N.W.2d at 752-53 (journal entries generally “referencing bombing,” and betraying a “troubled young man” fascinated with “suicide, death, and murder,” inadmissible to prove identity absent “indication” defendant was “preparing to place a bomb threat at ... school” or “kill any of his fellow students”) and Barrett, 401 N.W.2d at 189 (“sketchy” criminal plans described in journal insufficiently “similar” to modus operandi of “crimes for which defendant was being tried,” manifesting no “unique” crime preparation “skills”) and State v. Cheeseboro, 552 S.E.2d 300, 313 (S.C. 2001) (“general references glorifying violence” too “vague in context”) with, e.g., Kaufman v. People, 202 P.2d 542, 558 (Col. 2009) (possession of “reading materials” concerning “particular type of knife” used in altercation “could be relevant to identity”) and People v. Masters, 58 P.2d 979, 1000 (Col. 2002) (“drawings and writings reflect[ing] specific aspects” of charged murder – including “pools of blood, bloody drag trails, distinctive scratch marks on victims’ faces” and victims with “arms positioned” above heads – “sufficiently similar” to “actual crime to be admissible under” 404(b) for “identity”). 102 NEWYORK 8695866 v1 There, as here, “graphic,” “disturbing” and “inflammatory” lyrics written by the defendant were admitted on the prosecution’s case in chief. 2012 WL 3762431, at *1, *2, *3, *8, *10. There, as here, the lyrics were penned several years – “as many as three to four” – prior to the charged offense. Id. at *3. And there, as here, they were offered principally to “establish defendant’s motive” – even though that issue was not “genuinely in dispute.” Id. at *1, *3, *5. Like Cortez, rather, the defendant denied any involvement in the subject shooting, raising the sole question of the perpetrator’s identity. Id. at *2. The appeals court held the lyrics inadmissible under Rule 404(b), reversing the defendant’s conviction and ordering a new trial. “[T]his was not a case in which circumstantial evidence of defendant’s writings w[as] critical to show his motive,” the court remarked, because motive was not “really” contested and the prosecution had plenty of other “evidence” to prove it. Id. at *5-*6 (citation and internal quotes omitted). Indeed, that evidence formed “the centerpiece of the State’s case.” Id. at *6. 103 NEWYORK 8695866 v1 Nor could the lyrics be “used to identify defendant” as the shooter – the true point of contention – because there was “no evidence” that he “did any of the acts he wrote about” or “had any knowledge of the subject matter of his work beyond what might be seen in a violent movie.” Id. at *7. As a result, the “jurors were left to speculate that defendant had done such things even though there was no evidence to suggest that his writing was anything other than fiction.” Id. It followed from these premises that the writings had “no permissible relevance.” Id. at *1. Rather, their only conceivable purpose was to “graphically convey [] the impression that defendant, the author, had a propensity for violence and a reprehensible disregard for human life” – exactly what Rule 404(b) is “designed to interdict.” Id. (citation and internal quotes omitted). Overall, the court concluded, the lyrics’ “lengthy reading amounted to a prolonged and appalling assault on common sensibilities” – the very “consequence” the rule seeks to “avoid.” Id. at *4, *5. 104 NEWYORK 8695866 v1 This reasoning is equally applicable here and dictates the same result. Here, too, the issue on which the People purported to offer the challenged entries – motive – was not disputed. Here, too, the People had plenty of other evidence going to that issue, including the breakup, Cortez’s antagonistic writings about Woods herself and his dogged phone calls. See Leave Opp. 8 (motive “amply proven” by “undisputedly admissible journal entries relating to” Woods, statements to “friends and acquaintances” bemoaning breakup and “incessant calls” after Woods “ended their relationship”). Here, too, the real point in contest was the identity of Woods’s killer. And here, too, the challenged entries were inadmissible on that score, because there was “no evidence” Cortez “did any of the acts he wrote about” or “had any knowledge of the subject matter of his work beyond what might be seen in a violent movie.” Skinner, 2012 WL 3762431, at *7. Indeed, the challenged excerpts in this case were even less probative of identity than the writings in Skinner, which at least “describe[d] a shooting resembling” the one on trial, discussed “similar 105 NEWYORK 8695866 v1 crimes against unknown persons” and expressly “mention[ed] Tech-9s” – the same type of gun “used to shoot” the victim. Id. Here, by contrast, distinctive markers of that sort were entirely lacking. See supra note 46, 202 P.2d at 558 (possession of “reading materials” concerning “particular type of knife” used in altercation “could be relevant to identity”). As in Skinner, it follows that the challenged excerpts were likewise offered primarily to convey “the impression” that Cortez had a “propensity for violence and a reprehensible disregard for human life”47 – precisely what Molineux aims to “avoid.” Skinner, 2012 WL 3762431, at *1, *5; see also, e.g, Johnson, 643 N.E.2d at 1105 (evidence of defendant’s “hatred and contempt for women” constituted impermissible character proof, improperly admitted to “explain why [he] murdered his sister”); Dennis, 31 Colum. J.L. & Arts at 5, 17 (court should ask whether proffered writings “describe unique events” significantly 47 Compare, e.g., A2195, 2268 (prosecutor arguing that “songs betray” Cortez’s “violent nature” and exhibit “complete disrespect for women and ... their role in society”). 106 NEWYORK 8695866 v1 similar to crime charged or only “abstractly describe” event of same general “nature”; whether they provide “details or information” that only perpetrator or participant would know; and whether their “language or themes” are “ubiquitous or provide evidence of a unique modus operandi or belief”) (emphasis supplied); Wilson, 12 UCLA Ent. L. Rev. at 364 (admissibility “argument” weak where lyrics “relate to crime or violence” in “general or anonymous fashion”). c. Alternative Rationales Unavailing i. Intent and State of Mind Likewise Obvious and Undisputed; Challenged Entries Therefore Irrelevant and Unnecessary for Those Purposes As a fallback, the People have suggested the challenged entries were admissible to show Cortez’s intent or state of mind. E.g., A527; AD1 Answer 109; Leave Opp. 6-8. These justifications fare no better because intent, like motive, was also undisputed. Cortez did not contend that he attacked Woods with a knife and viciously stabbed her to death by accident or mistake. Cf., e.g., Alvino, 71 N.Y.2d at 242-44; People v. Griffin, 224 P.3d 292, 299-300 (Col. App. 2009); People v. 107 NEWYORK 8695866 v1 Williams, No. 263892, 2006 WL 3682750, at *1 (Mich. Ct. App. Dec. 14, 2006). To reiterate, he denied attacking her with a knife or stabbing her period. As noted, the issue in dispute was thus the identity of Woods’s assailant – whether Cortez killed her at all, not whether he intended to kill her if he did. If Cortez was the culprit, his malevolent intent was “readily inferable”48 – if not painfully obvious – from the “nature and surroundings” of the heinous crime itself. Alvino, 71 N.Y.2d at 233; see, e.g., Vargas, 88 N.Y.2d at 858 (extrinsic evidence “unnecessary” where intent “easily inferred” from “commission” of “act itself”); Alvino, 71 N.Y.2d at 255 (Hancock and Titone, JJ., dissenting) (“limited” intent exception only applies where acts involved in “crimes charged are equivocal”) (citations and internal quotes omitted). Skinner is again instructive in this regard, pithily declaring: This brutal shooting bespoke intent to kill. The jurors did not need [violent] lyrics, capable of suggesting that conviction would be proper for no reason other than [defendant’s] depravity, to 48 People v. Vargas, 88 N.Y.2d 856, 858 (1996). 108 NEWYORK 8695866 v1 understand that whoever fired seven bullets into [victim] Peterson’s head, neck and abdomen meant to cause his death. 2012 WL 3762431, at *6. So too with the brutal stabbing here, making extrinsic proof of intent irrelevant, unnecessary and a “pretext” for “persuad[ing] the jury” that Cortez had a “habit or propensity” for violence. Alvino, 71 N.Y.2d at 256 (Hancock and Titone, JJ., dissenting) (citation and internal quotes omitted); see, e.g., McKinney, 24 N.Y.2d at 183 (evidence of prior assaults inadmissible where intent to injure inferable from charged acts of stabbing and strangling); Foster, 939 F.2d at 455 (404(b) evidence inadmissible to prove intent where not at issue) (citation omitted); Hilton, 2005 WL 1489494, at *2 (sexually violent lyrics, crude and profane, inadmissible to prove intent because “not specific to the victims in this case or the charged [rape and robbery] crimes”); State v. McCary, 922 S.W.2d 511, 514-15 (Tenn. 1996) (dated diary entries describing defendant’s feelings for “several young men” other than instant complainants – but no actual “sexual encounters” – 109 NEWYORK 8695866 v1 constituted prejudicially inadmissible propensity evidence suggesting sexual deviancy where intent “not at issue”).49 ii. Challenged Entries Irrelevant and Unnecessary for Context Nor, for like reasons, were the challenged excerpts admissible to provide “context” (A284, 528; AD1 Ans. 109-10), as the circumstances surrounding the bloody murder – including, again, the preceding split, Cortez’s contemporaneous writings about Woods and his torrent of phone calls – spoke for themselves. See Masters, 58 P.3d at 1002 (extrinsic evidence admissible to explain charged conduct only where explanation actually necessary) (citation omitted); cf. Cvijanovich, 556 49 Similarly, entries written about Boo and Amanda long before the charged murder shed no light on Cortez’s state of mind – also undisputed if different from motive and intent – as to a separate woman many years later. See, e.g., McCary, 922 S.W.2d at 513, 515 (1981-82 entries “too remote” as to 1989-91 offenses against different victims); Wachtel, 124 A.2d at 615 (“undated writings” inadmissible to establish defendant’s state of mind “at or near” time of crimes); Tolson, 2005 WL 147918, at *1 (lyrics inadmissible for state of mind because “no evidence” when “written or that they related to [] specific incident in question”); Palinski v. Mathy, No. 08 C 4581, 2009 WL 1515278, at *3 (N.D. Ill. May 28, 2009) (journal entries written more than six months earlier “not relevant” to defendant’s “state of mind” at time of alleged arsons); Goldsberry, 630 N.E.2d at 1116-18 (notebook of writings and drawings “no evidence” defendant shared gang’s “enmity” toward victims at time of charged shooting); cf., e.g., Cvijanovich, 556 F.3d at 864 (Feb. 2005 threats properly admitted to show state of mind because “similar” and “close in time” to Nov. 2006 threats against same victim); Steiner, 30 N.Y.2d at 763 (victim’s diary entries inadmissible to show defendant’s motive 10 weeks later). 110 NEWYORK 8695866 v1 F.3d at 864 (prior threats admitted for context “only to the extent” referenced in charged statements). And even if there were some ambiguity that needed clarification, aged fantasies about others lacked the “intricate[]” relationship to the “facts of the case” required to supply it. Foster, 939 F.2d at 455 (citation and internal quotes omitted). On this record, then, “context” was an apparent euphemism for “propensity.” And that is exactly how the People used the challenged excerpts, claiming they showed “foreshadowing,” “progression” and a “pattern,” and exhorting the jury to “look at the kind of person [Cortez] is” – a violent “misogynist” whose “incredible narcissistic vanity,” “coupled with all his previous rejections” by women, erupted in “murderous rage.” (A283-285, 300-301, 526-528, 2268, 2270, 2277, 2285-2286) Any context the excerpts might have provided thus turned on an illicit inference about Cortez’s character: that he hated women and was therefore likely to kill one. Introducing evidence for “one purpose” (context) and using it for another (propensity) has long been held 111 NEWYORK 8695866 v1 “improper.” People v. Brown, 265 A.D. 153, 157 (2d Dept. 1942), aff’d, 290 N.Y. 830 (1943); see People v. Wlasiuk, 32 A.D.3d 674, 676 (3d Dept. 2006) (reversing where prior uncharged acts against same victim used to show “pattern” of violence culminating in murder). d. Conclusion In sum, the challenged excerpts had no logical bearing on any material issue in conflict at Cortez’s trial. It follows that they were not offered for a permissible purpose and should have been excluded. A prosecutor cannot conjure a genuine factual dispute just by invoking the magic word “motive” or parroting the list of other Molineux exceptions. 3. Even Assuming Molineux Analysis and Relevance to an Issue in Dispute, the Challenged Entries Lacked Appropriate Foundation, through Expert Testimony or Otherwise As Justice Freedman wrote in her separate opinion below, the prosecutor used the challenged entries to argue that “previous rejections” had made Cortez “increasingly more ‘hostile to women,’” causing him to “develop” a “‘murderous rage’” that exploded in Woods’s brutal stabbing. 85 A.D.2d at 412. These “‘psychological opinions’” did 112 NEWYORK 8695866 v1 more than go “beyond fair comment on the evidence,” as Justice Freedman lamented. Id. There was no competent “evidence” on which to admit the “questionabl[y] relevan[t]” entries – or to support the pseudoscientific conjecture they spawned – to begin with. Id. Diaries and other apocryphal writings present “interpretive ambiguit[ies],” Dennis, 31 Colum. J.L. & Arts at 16, and “distinct reliability issues,”50 posing “special [admissibility] problems.” Skinner, 2012 WL 3762431, at *8. One commentator notes that they are rife with “perception errors, memory errors, ambiguity in narration, and insincerity.” Ledwon, 73 Temp. L. Rev. at 1187 & n.15 (“vulnerable to exaggeration and fictionalization”), 17 (“false, unreliable, falsely perceived”) (citations and internal quotes omitted). Other scholars call them “nasty, petty and self-aggrandizing,” plagued by “contradictions, equivocations,” half-truths and “even lies.” Mello & Perkins, 22 Vt. L. Rev. at 125, 131; see also id. at n.135 50 Mello & Perkins, Ted Kaczynski’s Diary, 22 Vt. L. Rev. 83, 115 & n.135 (1997) (“Mello & Perkins”) (citation and internal quotes omitted). 113 NEWYORK 8695866 v1 (diarists “often fantasize” in “personal shorthand easily misinterpreted”) (citation internal quotes omitted). Also common are “role playing” and “hyperbolic extension” of “personal emotions and experiences.” Wilson, 12 UCLA Ent. L. Rev. at 357. This is especially so with male diaries, frequently born of adolescent “turbulence” and featuring “mythic accounts” of “epic hero[es],” “grand scale battles and struggles,” and quests for “revenge.” Ledwon, 73 Temp. L. Rev. at 1199, 1207, 1210, 1216 (footnotes omitted). These descriptions perfectly fit the challenged excerpts here, the young male author casting himself – in grandiose and operatic terms – as a “victim,” a “martyr” and a “monster,” seething with “pent up rage” and “dwell[ing]” on “thoughts of revenge” but “unable to kill” or “find retribution.” Leave Opp. 6 (citations and internal quotes omitted). Given these documented pitfalls and other questions of “accuracy” and “trustworthiness,” Ledwon, 73 Temp. L. Rev. at 1234, most courts require expert or lay foundation testimony assuring that diary-type writings have a sufficient factual predicate – and are adequately 114 NEWYORK 8695866 v1 grounded in reality – before admitting them as evidence. See, e.g., id. at 1216-17; Dennis, 31 Colum. J.L. & Arts at 20; Skinner, 2012 WL 3762431, at *8 (without “competent explanation” by someone with “expertise in the area,” judge and jury “left to speculate” about “lyric’s meaning”). After all, many “‘normal people’” – “that is, persons who do not commit criminal behavior” – “also engage in deviant sexual fantasies.” Masters, 58 P.2d at 1010 (Bender and Martinez, JJ., and Mullarkey, C.J., dissenting). And likewise, “crime fiction” writers can “hardly be said to have displayed criminal propensities through works” they “author[.]” Hanson, 731 P.2d at 1144. The same is true of “other forms” of individual “verbal expression” – particularly “artistic and creative expression.” Dennis, 31 Colum. J.L. & Arts at 2, 22; see, e.g., Foster, 939 F.2d at 456 (The Godfather no evidence that “Mario Puzo was a mafia don”; “The Pit and the Pendulum” no evidence that “Edgar Allen Poe had tortured someone”); Wilson, 12 UCLA Ent. L. Rev. at 375 (“average American” does not “assume that horror writers like Stephen 115 NEWYORK 8695866 v1 King or Wes Craven are disposed to violence and murder simply because [those] themes often appear in their work”) (footnote omitted). This Court’s Moore decision is a case in point. There, the Court affirmed the admission of a “militant antipolice document[]” the defendant had written – but only to “corroborate” fact witness testimony that “defendant and his associates planned and carried out” the charged shooting “because they had a vicious ideological hatred for the police.” 42 N.Y.2d at 424, 428-29; cf. Boyd, 576 F.3d at 943-44 (evidence defendant wrote “lyrics praising the murder of police officers” properly admitted on forensic psychiatrist’s expert testimony that “individuals who attempt suicide by cop” – purposely drawing “police fire to accomplish” their own death – “often harbor a deep hatred and resentment towards police officers”). Masters starkly and tellingly contrasts with Cortez in this regard. That case involved graphically “repulsive” and sexually violent “writings and drawings” – evincing the defendant’s “[h]atred of women” and fascination with “death by stabbing or slicing” – that strongly 116 NEWYORK 8695866 v1 resembled the crime charged: a distinctive and “otherwise inexplicable” attack against a “random” stranger. 58 P.3d at 983-85. Affirming the documents’ receipt to show motive, preparation and planning, the court stressed that their “relevance” and “admissibility” depended “largely” and “primarily” on “expert” testimony from a “forensic psychologist” specializing in “sexual homicide.” Id. at 985, 1004; see also id. at 1010 (admission “premised” on “expert’s testimony”) (dissenting op.). More precisely, the expert explained that “the motive in a sexual homicide is typically ‘intrinsic, internal, [and] very psychological for the individual.’” Id. at 1002. He then went on to interpret the defendant’s “written productions,” identifying “examples” that fell within five categories of “rehearsal fantasy” recognized in an “extensive body of specialized literature” developed “over 100 years.” Id. at 987, 992, 1002.51 51 Ironically, the expert supplied the very missing evidentiary links that the prosecutor concocted here, testifying that “one of the primary reasons perpetrators of sexual homicide fantasize is to express deeply felt hostility towards women. This hostility eventually crescendoes into a sexual homicide where the female victim is degraded, treated as a sex object, and sexually mutilated.” Masters, 58 P.2d at 999-1000 (emphasis supplied); see also id. at 1004 (expert 117 NEWYORK 8695866 v1 The doctor’s testimony thus “link[ed] the defendant’s fantasies” to the specific “crime” at hand, establishing the “stated [404(b)] exceptions” that justified their admission. Id. at 1010 (dissenting op.); see, e.g., United States v. Williams, 203 Fed. Appx. 976, 980 (11th Cir. 2006) (fact witness testified lyrics “accurately described” actual “drug dealings and robberies”); People v. Wright, No. B162219, 2004 WL 516250, at *5 (Cal. Ct. App. Mar. 17, 2004) (“expert gang testimony” that writings displayed “‘hardcore gang mentality,’” demonstrated defendant sought to establish “reputation in his gang” and showed he strove to be a “‘soldier’” in war with victim’s gang); People v. Olguin, 37 Cal. Rptr. 2d 596, 604 (1995) (expert gang testimony interpreting song lyrics). Here, by contrast, the People supplied no evidentiary foundation whatever – lay or expert, factual or empirical – to establish the challenged entries’ “relevance,” reliability or “admissibility.” Masters, 58 P.3d at 985, 987 (maj. op.), 1010-11 (dissenting op.). Instead, the “opined that sexual homicides are often preceded by a ‘triggering mechanism’ or ‘precipitating event’ that causes the perpetrator to transform his fantasies into action”). 118 NEWYORK 8695866 v1 prosecutor filled the gap himself, acting as an unsworn witness and substituting his own armchair conjecture for competent testimony from a qualified expert. He thus bootstrapped the entries’ admission by pseudoscientific supposition, surmising that Cortez’s reaction to “broken love affairs” – and growing hostility to “women who disappointed him” – revealed a “progression” of “thinking” and an evolving “state of mind” that somehow bore a “relevant connection to what happened to Catherine Woods.” A526-527; cf., e.g., People v. Drake, 129 A.D.2d 963, 965 (4th Dept. 1987) (picquerism, a “pathological condition” used in “criminal psychological profiling” by which “sexual satisfaction” is derived from stabbing the victim, properly the subject of expert testimony). Having thereby manufactured his own foundation, the prosecutor then compounded the injury by telling the jury the entries proved the same unsupported psychobabble he used to admit them in the first place, essentially arguing in a circle. E.g., A2268, 2276-2278, 2285- 2286, 2300 (Cortez a violent “misogynist narcissist” whose “previous 119 NEWYORK 8695866 v1 rejections” and “fail[ures] at love” stoked anger toward women that gradually “escalat[ed]” and suddenly exploded in “murderous rage”); contra, e.g., Crumply v. Wack, 212 A.D.2d 299, 307 (1st Dept. 1995) (narcissistic personality disorder a “mental illness” ordinarily established by expert psychiatric evaluation). For this additional reason – lack of appropriate foundation – the challenged excerpts were irrelevant and improperly admitted. Compare, e.g., Hanson, 731 P.2d at 1144 (defendant’s writings “simply not probative” and improperly admitted “[w]ithout some further foundation”; conviction reversed for retrial) with, e.g., Goldsberry, 630 N.E.2d at 1115 (reversing conviction despite expert gang testimony explaining “significance” of defendant’s improperly admitted “writings and drawings”); United States v. Price, 418 F.3d 771, 782-83 (7th Cir. 2005) (probable error to admit unattributed lyrics, despite expert interpretation by “federal agent with specialized [drug] knowledge”); State v. Nance, 533 N.W.2d 557, 559, 562 (Iowa 1995) (writings from 120 NEWYORK 8695866 v1 defendant’s apartment erroneously admitted despite detective’s expert identification as “gang notes”). 4. Even Assuming Molineux Analysis, Relevance to a Disputed Issue and Appropriate Foundation, the Challenged Entries Were Minimally Probative – and Any Probity They Had Was Dwarfed by Their Immense Capacity for Prejudice – Relegating the Entries to Harmfully Improper Propensity Evidence Additional factors reduced the probity of the challenged excerpts even further – and diminished it to the vanishing point when compared with their inordinate potential for unfair prejudice – betraying the excerpts as lethally inadmissible propensity evidence requiring reversal of Cortez’s conviction. First, the People had no legitimate “need” for the challenged excerpts, Alvino, 71 N.Y.2d at 242, because they were cumulative of more probative and “less prejudicial proof available” and introduced for the purposes professed. Tolson, 2005 WL 147918, at *2. By the People’s own account, this other evidence included “undisputedly admissible journal entries relating to” Woods herself, “statements” by Cortez to “friends and acquaintances bemoaning the[ir] breakup” and 121 NEWYORK 8695866 v1 “phone records showing [his] incessant calls to [Woods] after she ended their relationship.” Leave Opp. 8; accord, Cortez, 85 A.D.3d at 411 (noting unchallenged “entries” reflecting defendant’s “antagonism toward the victim”); contra Skinner, 2012 WL 3762431, at *6 (proof of “defendant’s writings” unnecessary given ample other “evidence” of “motive”). In this light, offering and allowing the challenged excerpts only pushed the envelope and smacked of overkill. Second, the challenged entries were temporally remote,52 dating up to five and six years before Woods’s Nov. 2005 murder, when Cortez was just a college student. A526-527, 745-747; Leave Opp. 6; see supra 109 n.49 and cases cited; accord Dennis, 31 Colum. J. L. & Arts at 33 (court should consider whether lyrics “written before or after [] charged offense or at some other point remote in time”); compare, e.g., Skinner, 2012 WL 3762431, at *3 (reversing where verse written “three to four years” earlier) and Hannah v. State, 23 A.3d 192, 193, 195 (Ct. App. Md. 2011) (same where high school verse written two years earlier) and 52 Cf. Bradley, slip op. at 3, 8 (reversing under Molineux for errant admission of prior stabbing committed “at some remote, indeterminate time” before stabbing charged). 122 NEWYORK 8695866 v1 Barrett, 401 N.W.2d at 185-86 (same where journal written five years later) with, e.g., Joynes v. State, 797 A.2d 673, 675, 677 (Del. 2002) (affirming where verse written the next day). 123 NEWYORK 8695866 v1 Third, this is not a case where the challenged entries involved the actual victim of the charged offense, and/or so matched its circumstances as to constitute an autobiographical confession or proof of a guilty conscience. Cf., e.g., Dennis, 31 Colum. J. L. & Arts at *2 (“defendant-authored” writings typically received as “autobiographical depiction[s] of actual events,” amounting to “inculpatory statements” or “confession[s]”); Hannah, 23 A.3d at 197 (most decisions reviewing receipt of defendant’s writings “distinguish[] admissible statements of historical fact from inadmissible works of fiction”) (footnote omitted); Tolson, 2005 WL 147918, at *3 (“most” cases involve writings authored “shortly after” or specifically referencing “crime committed”).53 53 Compare, e.g., Hilton, 2005 WL 1489494, at *2 (inadmissible verses “not specific to the victims in this case or the charged crimes”) and McCary, 922 S.W.2d at 514-15 (reversing where diaries described unconsummated feelings for “several young men” other than instant sex abuse complainants) and J.A.L., 694 N.W.2d at 752-53 (nothing in improperly admitted journal entries indicated defendant was “preparing to place a bomb threat at ... school” or “kill any of his fellow students,” charges at hand) and Cheeseboro, 552 S.E.2d at 313 (“general references glorifying violence,” with no “identifying details” of “crimes committed”) and Tolson, 2005 WL at 147918, at *1 (excluding verses with “no reference” to “particular situation in question” or “specific drugs found”) with, e.g., State v. Deases, 476 N.W.2d 91, 93 (Ct. App. Iowa 1991) (post-offense lyrics mirrored circumstances of charged murder and mentioned victim’s name) and Greene v. Commonwealth, 197 S.W.3d 76, 86-87 (Ky. 2006) (post-offense rap video boasted of wife’s murder) and Bryant v. State, 802 N.E.2d 486, 491-92, 498 (Ct. App. Ind. 2004) (pre-offense poems expressed hostility to stepmother and referenced a body stuffed in defendant’s car trunk, where stepmother found dead in trunk of car defendant claimed to own) and Cvijanovich, 556 F.3d at 859-62, 864 (same target, 124 NEWYORK 8695866 v1 To the contrary, the challenged entries concerned entirely different women. Cf., e.g., People v. Leeson, 12 N.Y.3d 823, 827 (2009) (approving admission of uncharged sex acts involving “very same victim” during “very same time period”); People v. Dorm, 12 N.Y.3d 16, 18-19 (2009) (prior victim assaults properly admitted while “similar conduct against other women” excluded); People v. Vega, 3 A.D.3d 239, 247-48 (1st Dept. 2004) (prior instances of victim abuse “often” admissible in cases of intimate violence, while evidence of past assaultive behavior against others “predominantly” precluded as “propensity” proof) (collecting cases); Bradley, slip op. at 1, 3, 8 (earlier stabbing of other, “unidentified” man had no “direct” or “logical” bearing on charged stabbing of “estranged boyfriend”).54 And again, the People had plenty of other contemporaneous entries – admitted without objection – discussing Woods herself or plausibly construed as referencing her murder. E.g., A1471-1473 (Dec. prior threats) and Kelsaw v. Horel, No. S-08-1612, 2010 WL 3634337, at *4, *25-*27 (E.D. Cal. Sept. 14, 2010) (post-offense lyrics reasonably viewed as admissions to charged crimes). 54 But see, e.g., Hudy, 73 N.Y.2d at 55 (even prior molestations of “same victim” may be “propensity evidence hiding behind an assumed name”) (citation and internal quotes omitted) (emphasis supplied). 125 NEWYORK 8695866 v1 2004 poem mentioning Midwestern girl – Woods was from Ohio – getting her throat cut), 1473-1475 (March 2005 verse mourning “loss of Catherine Woods”), 1475-1478 (undated verse declaring author’s “heart ... broken” because “not together” with “Catherine Woods,” and railing that she “turned out to be lying too” and “was sleeping with David and the others the entire time she told me she was true and in love with me”), 1479-1481 (undated verse or poem referencing a “swan” being “gone,” in the “air” and “taken from the earth”; stating “I never wanted [f]or you to die,” “I only wanted [t]o follow you” and “[k]eep your silence”; and mentioning a “cell,” an “electric chair” and someone being “bound for hell”). Fourth, shrinking their probity still further, the challenged entries had all the “distinct reliability issues,” Mello & Perkins, 22 Vt. L. Rev. at 115 & n.135, and “special [admissibility] problems,” Skinner, 2012 WL 3762431, at *8, associated with fantasy writings, as their subjects were concededly never harmed. See supra SUBPOINT III(B)(3) and authorities cited; cf., e.g., Goldsberry, 630 N.E.2d at 1115 (unclear whether events depicted in defendant’s poems “actually 126 NEWYORK 8695866 v1 occurred” or were mere “figments” of “creative mind”); Hanson, 731 P.2d at 1145 (defendant’s “writings” only probative “if we accept the proposition that an author’s character can be determined by the type of book he writes”); Hannah, 23 A.3d at 204 (Harrell, J., concurring) (recognizing that purportedly confessional “rap lyrics often convey a less than truthful accounting of the violent or criminal character of the perform[er]” or “composer”); Dawson v. Del., 503 U.S. 159, 167 (1992) (state “might have avoided [admissibility] problem” by “present[ing] evidence” of “more than mere abstract beliefs on [defendant’s] part,” rather than “simply [hoping] the jury would find these beliefs morally reprehensible”). Fifth, magnifying their prejudicial effect, the challenged entries were introduced as substantive proof of guilt on the People’s direct case – before Cortez took the stand,55 and not to impeach his testimony or rebut any defense he asserted.56 See, e.g., Hilton, 2005 WL 1489494, at *2 (“court simply” – and improperly – admitted crude, profane and 55 Contra Richardson, 137 A.D.2d at 107. 56 See People v. Buskey, 45 A.D.3d 1170, 1172-73 (4th Dept. 2007); cf. Bradley, slip op. at 1-11 (reversing even where prior stabbing was offered to rebut justification/battered spouse defense). 127 NEWYORK 8695866 v1 sexually violent “lyrics as substantive evidence”); cf., e.g., Hannah, 23 A.D.2d at 201 (reversing where defendant’s “direct examination did not open the door to the State’s use of his writings”); Hanson, 731 P.2d at 1144 (same despite assumption that defendant’s testimony “placed his character for nonviolence in issue”; writings “irrelevant to rebut this character evidence” regardless). Sixth, having erroneously held Molineux inapplicable, the trial court admitted the challenged entries “without [a] limiting” instruction “indicating” the avowed purpose(s) for their receipt, Steiner, 30 N.Y.2d at 763, allowing the jury to use them for any purpose whatsoever – including to infer Cortez’s guilt from personal depravity and criminal disposition. Cf., e.g., Dorm, 12 N.Y.3d at 18-19; Bradley, slip op. at 9-10 (reversing despite issuance of proper cautionary instruction; nothing could have “avoided” forbidden propensity inference attending incidents’ “superficial similarity”).57 57 Compare, e.g., Steiner, 30 N.Y.2d at 763 (diary’s improper admission “compounded” by lack of limiting instruction) and People v. Stanard, 32 N.Y.2d 143, 147-48 (1973) (reversing for impermissible use of background evidence despite adequate cautionary instructions) and Skinner, 2012 WL 3762431, at *18-*19, *22- *23 (reversing for erroneous admission of defendant’s dated, graphic, violent and offensive writings, despite repeated limiting instructions) (dissenting op.) with, e.g., 128 NEWYORK 8695866 v1 Seventh, with little or no probity and a great risk that the jury would “condemn” Cortez for his repugnant thoughts and fantasies, Richardson, 137 A.D.2d at 107, it follows that the challenged entries “served” only to suggest that he had a “propensity for violence” against women, and therefore was likely to have “commit[ted] the crime[]” on trial. Hannah, 23 A.3d at 202. The “real reason for admitting this evidence,” that is, was “not to show state of mind,” but to malign Cortez’s “character.” Turpin, 26 F.3d at 1415 (Feikens, Sr. D.J., concurring and dissenting). Condoning such “impermissible inferences” to shed a “modicum of [putative] light” on a defendant’s “intent” or motive would create a “‘back door’ method of admitting excludable” propensity proof, effectively “swallow[ing]” Molineux’s “prohibition.” Dennis, 31 Colum. J. L. & Arts at 27, 34 (footnote, citation and internal quotes omitted); see, e.g., Masters, 58 P.2d at 1004-05 (dissenting op.) (“repulsive and antisocial” high school “notebooks,” having nothing to do with “grisly murder” charged, amounted to “damning innuendo” smearing defendant Jackson, 8 N.Y.3d 869 and Eastwood, 850 A.2d 234 and Foster, 939 F.2d 445 and Kelsaw, 2010 WL 3634337 and Cvijanovich, 556 F.3d 857 and Olguin, 37 Cal. Rptr. 2d 596 (all noting or emphasizing effective limiting instructions in affirming). 129 NEWYORK 8695866 v1 as “a boy obsessed with violence”); McCary, 922 S.W.2d at 515 (“remote” diary expressing incipient “feelings” for unharmed “young men” other than named victims “constituted highly prejudicial propensity evidence” tarring defendant as a “sexual deviant”); Turpin, 26 F.3d at 1403-04, 1415 (concurring and dissenting op.) (“self-aggrandizing ramblings” from “teenage diary” no more than masked “character evidence”). Eighth, the risk of prejudice implicit in the challenged excerpts exploded into reality with their presentation to the jury, the People “emphasiz[ing]” Cortez’s “fantasies at every opportunity,” Masters, 58 P.2d at 1008 n.6 (dissenting op.), and using them to “assassinate” his “character” and “good name.” Wilson, 12 UCLA Ent. L. Rev. at 364. Indeed, his “uncharged fantasies dominated” the trial from inception to “verdict,” Masters, 58 P.2d at 1007 (dissenting op.), the prosecutor opening on the challenged excerpts,58 “reading them aloud” on the 58 See A284 (“The defendant had over the last few years become obsessed with other women [objection overruled] who also after a time fled his obsessive ways and ended contact with him. And he would turn on them little by little until he actually reached the point where he fanaticized [sic] about violence against them. Gradually his internal [objection overruled] rage grew and unfortunately for Catherine Woods, she was the woman on whom his thoughts of violence turned to action.”) (emphasis supplied), 300-301 (“Extracts from a few of these books will allow you to glimpse into the defendant’s mind.... [T]hey are sometimes bizarre, 130 NEWYORK 8695866 v1 People’s case,59 leaning on them in “cross-examin[ing]” Cortez, hammering them home in summation, and generally using them to “link” Cortez to the “crime[.]” Hilton, 2005 WL 1489494, at *2. Most debilitating was the prosecutor’s “excessive” closing argument, Cortez, 85 A.D.3d at 411, which exploited the challenged entries by demonizing Cortez as a “misogynist narcissist” and abhorring “the kind of person he is” – one whose past “failure[s]” in “love” made him “more and more violent” and “angry” at “women” until he “couldn’t handle rejection anymore,” igniting a sudden convulsion of “murderous rage” against an unsuspecting woman who “just happened to be in the wrong place at the wrong time.” A2276-2278, 2285-2286 (emphasis supplied), 2299-2300 (“She probably doesn’t understand why he did it. She’s not reading his secret diaries.”). There can be no purer appeal to propensity than demeaning the defendant as a “person” and beseeching the jury to convict because of his “violent nature.” (A2268, 2276, 2285) sometimes pathetic, but ultimately very frightening. These extracts will reveal the defendant’s growing frustration, rage [and] anger....”) 59 See A1461-1462. 131 NEWYORK 8695866 v1 The People thus used the challenged entries as cover for doing exactly what Molineux proscribes: goading the jury to extrapolate “conduct” from “character,” Masters, 58 P.2d at 1005 (dissenting op.), to judge Cortez by “who he [wa]s” was rather than “what he [allegedly] did” (id.), and to penalize him for his inclinations instead of his “actions.” Turpin, 26 F.3d at 1403-04, 1415 (concurring and dissenting op.). Since diaries are presumptively “strong evidence,” Ledwon, 73 Temp. L. Rev. at 1188 – and jurors draw “improper inferences” and are “more likely” to return guilty verdicts based on a defendant’s writings, Dennis, 31 Colum. J. L. & Arts at 30 (footnote and citation omitted) – the entries’ errant admission and impermissible use bolstered the prosecution’s case, damaged Cortez’s defense and surely could have shaped the outcome. See, e.g., Steiner, 30 N.Y.2d at 763 (reversing conviction where erroneously admitted “diary entries” unfairly exploited in prosecutor’s summation); Stanard, 32 N.Y.2d at 146-47 (reversing conviction for impermissible use of background evidence in summation); Bradley, slip op. at 4, 11 (evidence of defendant’s “general, free floating 132 NEWYORK 8695866 v1 anger towards men” improperly admitted and “extremely prejudicial,” compelling Molineux reversal). C. CONCLUSION The challenged entries were incorrectly admitted without Molineux analysis, prejudice-probity balancing or limiting instruction. They had no permissible Molineux purpose and were irrelevant to any material issue in dispute. They were cumulative, stale, unfounded and unreliable, comprising latent thoughts and fantasies about unharmed third parties. It follows from these shortcomings that the entries constituted and were used as vintage character and propensity evidence – or at least that their capacity for prejudice as such swamped any residual probity they might have had. The entries therefore should have been excluded. The People’s case, in which the sole direct evidence was an undatable fingerprint that could have been left during any of Cortez’s prior visits to Woods’s apartment (A685, 791-795), was principally circumstantial and less than overwhelming. Among its infirmities: 133 NEWYORK 8695866 v1 • The murder weapon was never found or introduced. • None of Cortez’s blood was recovered from the apartment. • None of Woods’s blood was found on Cortez or his belongings. • Hair found in the apartment did not belong to Cortez or implicate him as the killer. • No one saw Cortez in or around Woods’s building at the time of the murder, and a functioning surveillance camera did not place him there. • How Cortez could have escaped the building and fled without detection was never explained. • The People presented no DNA proof, despite abundant forensic evidence available for testing. • There was a viable alternative suspect in David Haughn, Woods’s live-in lover and Cortez’s romantic rival – the last person to report seeing Woods alive and the first to report her death. (A1079-1080, 1088-1090) Haughn’s own statement to police placed him in the apartment at the attack time. (A1135-1137, 1145-1147, 2226-2228, 1734) 134 NEWYORK 8695866 v1 Given these frailties, the entries’ admission was demonstrably prejudicial and could not have been harmless. Reversal and retrial are therefore required. CONCLUSION Fighting for his life, Cortez received a subpar defense from a lawyer with an invalidly waived conflict of interest, in an unfair trial marred by prejudicially inadmissible character and propensity proof. His conviction should be reversed. Dated: New York, NY November 30, 2012 Respectfully submitted, LAW OFFICE OF MARC FERNICH By: __________________________________ MARC FERNICH 152 W. 57th St. Fl. 24 New York, NY 10019 (212) 446-2346 maf@fernichlaw.com Counsel for Paul Cortez