The People, Respondent,v.Grady Hampton, Appellant.

Brief

N.Y.April 23, 2013

Appellate Division, Second Department Docket No. 2010-04299 Nassau County Clerk’s Indictment No. 1672N-08 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Respondent, against GRADY HAMPTON, Defendant-Appellant. To Be Argued By: Joseph A. Gentile Time Requested: 15 Minutes REPLY BRIEF FOR DEFENDANT-APPELLANT FRANKIE & GENTILE, P.C. Attorneys for Defendant-Appellant 1527 Franklin Avenue, Suite 104 Mineola, New York 11501 516-742-6590 Date Completed: August 24, 2012 Table of Contents Page Preliminary Statement...................................................................................... 1 Statement of Facts 2 Point I THE RESPONDENT INCORRECTLY ASSERTS THAT JUDICIARY LAW SECTION 21 APPLIES EXCLUSIVELY TO FACTUAL QUESTIONS AND HAS NO APPLICABILITY TO LEGAL ISSUES RAISED DURING THE COURSE OF LITIGATION.......... .......... ...... 3 A. A TRIAL ORDER OF DISMISSAL IS A UNIQUE APPLICATION WHICH IS DIRECTED AT LEGAL SUFFICIENCY BUT ALSO REQUIRES A FACTUAL ASSESSMENT OF THE EVIDENCE BY THE TRIAL COURT 7 B. THE RESPONDENT'S ASSERTION THAT THE DEFENDANT WAIVED THE ARGUMENT THAT JUDICIARY LAW SECTION 21 APPLIES TO LEGAL ISSUES IS MISPLACED; FURTHER, THE ONLY APPROPRIATE REMEDY INVOLVING A SECTION 21 VIOLATION DURING A TRIAL IS A MISTRIAL...................... 11 Point II THE APPELLANT DID NOT WAIVE ARGUMENTS PERTAINING TO THE ABSENCE OF EVIDENCE AT THE TRIAL ORDER OF DISMISSAL ORAL ARGUMENT IN COURT AND THE TRIAL COURT EMPHASIZE~ THOSE ISSUES DURING THE EXCHANGE WITH THE PROSECUTOR WHILE SUBSEQUENTLY PERMITTING BOTH PARTIES TO FILE A WRITTEN MOTION ON A TRIAL ORDER OF DISMISSAL........ 14 1 A. THE NELSON TESTIMONY WAS BOTH INCREDIBLE AND PATENTLY ABSURD IN THE CREATION OF A FICTITIOUS INDIVIDUAL AT THE CRIME SCENE... 17 B. THE PURPORTED EVIDENCE OF CORROBORATION LACKS ANY PROBATIVE IMPORT ON THE IDENTITY OF THE SHOOTER............................................................................ 19 Conclusion........................................................................................................... 22 11 TABLE OF AUTHORITIES Page Statutes Judiciary Law Section 21 . New York State Criminal Procedure Law Section 70.10 .. New York State Criminal Procedure Law Section 290.10 . New York State Criminal Procedure Law Section 330.30 . Case Law 3,4,8, 10,11, 12,13, 22 7 7,16, 17 9,11, 16 People v. Hines, 97 N.Y.2d 56 (2001).......................................................... 8 People v. Kirkpatrick, 32 N.Y.2d 17 (1973).................................................. 8 People v. Sabella, 35 N.Y.2d 158 (1974) 7 People v. Thompson, 90 N.Y.2d 615 (1997).................................................. 5 Smith v. State of New York, 214 N.Y. 140 (1915) 3,12 Clover-East Associates v. Bachler, 23 A.D.2d 620 (4th Dept. 1965) 4 Evans v. State of New York, 29 A.D.2d 611 (3d Dept. 1967) 3 Gayle v. Port Authority of New York and New Jersey, 6 A.D.3d 181 (1 st Dept. 2004) 6 People v. Brun, 58 A.D.2d 862 (2d Dept. 2009) 7 State of New York v. General Electric, 215 A.D.2d 928 (3d Dept. 1995) 4 111 Preliminary Statement The defendant-appellant, Grady Hampton, appeals from a judgment of the Supreme Court, Nassau County, convicting him ofone count ofMurder in the Second Degree and two counts of Criminal Possession of a Weapon in the Second Degree after ajurytrial before the Hon. Jerald S. Carter and an order ofthe Appellate Division affirming the conviction dated June 3, 2011. The defendant was sentenced on April 23,2010 by the Hon. Daniel R. Palmieri to an indeterminate sentence of twenty (20) years to life on the homicide conviction and a concurrent sentence of ten (10) years incarceration with five (5) years post-release supervision for each count of weapons possession along with the applicable surcharge, DNA, and crime victim assistance fee. On February 28,2012, the Hon. Robert S. Smith granted defendant permission to appeal from the order of the Appellate Division. This reply brief is submitted in reply to Respondent's brief. 1 Statement of Facts The defendant-appellant relies on the summary of facts presented in their main brief. 1 lThere is one correction of note on the Respondent's factual review. The defendant- appellate received an indeterminate sentence of twenty (20) years to life from Judge Palmieri and not twenty-five (25) to life as outlined in the Respondent's brief. (See Sentence Minutes at Appendix p. 804). 2 POINT 1 THE RESPONDENT INCORRECTLY ASSERTS THAT JUDICIARY LAW SECTION 21 APPLIES EXCLUSIVELY TO FACTUAL QUESTIONS AND HAS NO APPLICABILITY TO LEGAL ISSUES RAISED DURING THE COURSE OF LITIGATION In their filed brief, the Respondent attempts to invoke a bright line rule that has not been embraced by the relevant case law. In effect, the People are suggesting that Judiciary Law Section 21 is only applicable to a factual question where a trial judge has presided over an issue but would not apply to a legal issue presented to a trial court. The Respondent relies on post-trial legal decisions to support its view and attempts to distinguish the Judiciary Law Section 21 case law as being limited to factual determinations. Simply stated, the interpretation of the Respondent is not supported by the relevant cases. There is no dispute that it is improper under Judiciary Law Section 21 to substitute a judge who reviewed factual issues and heard testimony; accordingly, a mistrial was the appropriate ruling and a new trial was ordered in such a circumstance. Smith v. State of New York, 214 N.Y. 140 (1915); (negligence trial), Evans v. State ofNew York, 29 A.D. 2d 611 (3d Dept. 1967) (valuation ofproperty). However, the doctrine has also been applied to circumstances where a ruling on a legal issue has been presented to a trial judge yet Section 21 barred the resolution of the 3 issue involving the legal question. For example, the Respondent ignored the decision in Clover-East Associates v. Bachler, 23 A.D.2d 620 (4th Dept. 1965) where oral argument had been held before a Supreme Court justice on a motion which is a legal application. Without consent of either party, the matter was sent to another justice who decided the motion without hearing any argument. The Appellate Court concluded that deciding the motion by the substitute judge was prohibited by Judiciary Law Section 21 and vacated the order being appealed from at the trial level. Secondly, the Respondent has misread and misinterpreted the holding of State ofNew York v. General Electric, 215 A.D.2d 928 (3d Dept. 1995). This case does not involve a factual determination but rather a ruling involving a protective order and a discovery and inspection issue. A referee denied a motion by the plaintiff for a protective order and the plaintiff moved for a reversal of the order which was orally argued before a Supreme Court justice who retired prior to rendering a decision. The Third Department concluded that it was error and a violation ofJudiciary Law Section 21 to have a substituted judge rule on this legal issue (denial of a protective order) which had been heard by the retired justice. Apparently, the Third Department, sua sponte, elected to address the issue of the failure to advance a basis for a protective order based on the fact that this was the fourth appeal regarding this litigation and 4 confirmed the referee's order. However, for the Respondent to conclude that this decision supports the view that the substitute judge was ruling on a factual determination and not a legal issue is seriously misplaced given the procedural context of the litigation involving discovery issues and the request for a protective order. In fact, the language ofSection 21 which bars a substitute judge from ruling on a question presented to another jurist in open court does not qualify the type of question presented to the trial court. The statutory language simply asserts that a judge should not be substituted where a question was orally argued in the court before another jurist. The emphasis of the statutory language is not on the nature of the question; rather, the focus ofthe statute is whether or not the litigated issue was orally argued in court before another judge. Simply stated, the analysis of the Respondent misses the essence and purpose of the statute. The statute's purpose was to insure that, at the trial level, parties are entitled to have the same judge rule on a particular issue which is analogous to the law of the case doctrine. The Thompson case, as noted in our original brief, is distinguishable because there was no pending motion or issue unresolved by the trial judge at the point in time when he became physically disabled and a substitute judge was able to review the record and proceed with the trial. People v. Thompson, 90 N.Y.2d 615 (1997). The other cases referenced by the Respondent are post-trial 5 motions which deal solely with a legal issue and not an issue that occurred during the conduct ofthe trial. Even those decisions concede that a substitute judge may address the issue ifthe perspective ofthe trial judge was not essential to the proper evaluation of the motion. Gayle v. Port Authority of New York and New Jersey, 6 A.D. 3d 181 (1 st Dept. 2004). For these reasons, the Respondent attempts to narrow the applicability of the statute in a manner which is inconsistent with the essence and purpose ofthe law. The statute has been applied to legal rulings of a trial court, as well as the factual determination by a trial court; however, the lynchpin for the applicability ofthe statute is whether the trial court orally argued the issue in open court and not whether the statute is applicable to a post-trial motion dealing exclusively with a legal issue. The trial order of dismissal argument occurs at two significant points of a trial and embraces an assessment of the evidence in order to resolve the legal sufficiency question; therefore, the extensive trial order of dismissal argument in this case discussing a failure to prove motive, the unresolved DNA evidence, the import of Nelson's testimony and the overall circumstantial nature of the case analyzed questions which were required to be resolved by the trial judge who analyzed them and not a substitute judge. The plain language ofthe statute indicates that the arguing of the questions before a judge in court triggers its application and not the nature of 6 the issue involved. A. A Trial Order of Dismissal is a Unique Application Which Is Directed at Legal Sufficiency but Also Requires A Factual Assessment of the Evidence by the Trial Court Under Section 290.10 of the Criminal Procedure Law, a trial order of dismissal is a unique trial application which occurs at two distinct temporal stages, i.e., at the conclusion of the People's case and at the conclusion of all the evidence. More importantly, although the trial court should not assess credibility or engage in a calculus of the weight of the evidence, the trial court must assess and, in essence, summarize the efficacy of the presented evidence to determine whether the legal elements ofthe particular crime have been established. It is the trial court which must analyze or assess the presented evidence to determine ifcompetent evidence has been presented which would establish every element of the offense charged and the defendant's commission of the offense. C.P.L. Section 70.10 (emphasis added). Although there is no question that the legal sufficiency determination is a legal one and that the evidence is viewed in the light most favorable to the People, there is also a factual component to the analysis as the trial court must review the evidence to determine its impact upon the legal elements. People v. Brun, 58 A.D.2d 862 (2d Dept. 2009). See also, People v. Sabella, 35 N.Y.2d 158 (1974). 7 Moreover, there is an additional component in a trial order of dismissal application which is unique and focuses on the necessity of a trial court to conduct a factual assessment of the evidence. Initially, the motion is made at the end of the People's case and the trial court can elect to render a decision or reserve decision based upon the evidence presented at that time. However, the second trial order of dismissal application is conducted at the conclusion of all the evidence and the trial court must once again assess the evidence presented by the defense to determine whether the legal elements have been satisfied and the trial court is permitted to utilize the evidence presented by the defense to determine whether certain proofdeficiencies have been satisfied by the evidence presented by the defendant. Specifically, the trial court is permitted to utilize all the proofpresented by both sides in order to determine legal sufficiency. See People v. Hines, 97 N.Y. 2d 56 (2001); People v. Kirkpatrick, 32 N.Y.2d 17 (1973). The Respondent attempts to suggest that Judge Palmieri was ruling on a post- trial legal application which should not trigger the application of Judiciary Law Section 21. Nothing could be further from reality. A trial order ofdismissal is a mid- trial and end of trial evidence application that requires an assessment of the factual evidence at two distinct stages of the proceedings with an analysis of two sets of evidence as it impacts on legal sufficiency. In this case, after the defense attorney 8 argued that Ms. Nelson's testimony was equivocal, imprecise and lacked probative force, he indicated any other evidence was peripheral and not probative on the issue of guilt.2 Judge Carter specifically commented on the failure to demonstrate pre- shooting evidence ofa sexual motive for the crime and the fact that the DNA evidence from the shell casings did not match the defendant. The Assistant District Attorney disagreed with the factual assessment ofthe court on the issue ofmotive and asserted the circumstantial facts surrounding the shooting incident warranted a finding oflegal sufficiency. The colloquy regarding the facts derived from the evidence involved six pages of the transcript with the court and the attorney raising these legitimate issues and concerns. A second trial order of dismissal application was renewed at the end of the defense case and would require the trial court to assess and evaluate the evidence presented by the defendant on the issue oflegal sufficiency. There is no question that "legal sufficiency" is a legal question which does not involve weight of the evidence or a credibility assessment; however, "legal sufficiency of the evidence (emphasis added)" requires the trial court to assess and evaluate both cases presented before the 2The Respondent attempts to argue that the written CPL Section 330.30(1) motion expanded these arguments impermissibly but a review of the transcript reveals that trial counsel made these arguments comprehensively at the trial order of dismissal stage and that the written motions merely furnished additional detail. 9 court to determine the probative import of the evidence on the legal elements pertaining to the commission of the crime. An unfortunate irony in this case is that Judge Palmieri's factual assessment of the evidence completely contradicted the view ofthe trial court. For several pages in his decision, Judge Palmieri reviews the trial record and concludes that motive was established based on the "dirty looks" between the deceased and the defendant despite Judge Carter's assessment to the contrary. Judge Palmieri refused to grant a mistrial request and proceeded to evaluate the trial order of dismissal application as a part of a motion to set aside a verdict. The anomaly in this case is that we have two judges disagreeing about their factual assessment of the evidence. The Respondent's attempt to restrictively view a trial order of dismissal as a routine legal issue without acknowledging the two-step factual assessment by the trial court undercuts the probative force of their position. The post-trial legal application cases are not dispositive on a circumstance where a trial judge conducted a factual assessment and analyzed his view with both attorneys. At such a point, the provisions of Section 21 are applicable and the utilization of a substitute judge on an important trial application is barred by the statute. 10 B. The Respondent's Assertion That The Defendant Waived The Argument That Judiciary Law Section 21 Applies to Legal Issues Is Misplaced; Further, The Only Appropriate Remedy Involving A Section 21 Violation During a Trial is a Mistrial The Respondent has presented an unusual argument regarding the issue of waiver. In the CPL Section 330.30 argument presented to the two judges at the trial court level, trial counsel properly argued that a trial order of dismissal requires a "determination of the facts at the trial" and should be distinguished from a motion to set aside a verdict involving a purely legal issue. The motion also noted that the factual determination was orally argued before the court and Judiciary Law Section 21 precluded the matter from being reviewed by a substitute judge.3 Accordingly, trial counsel properly framed the issue which is the subject ofthis appeal i.e., the trial court, in ruling on a trial order of dismissal, was required to make factual determinations (not a ruling on credibility or quality ofthe evidence) which impact on the evidentiary determination pertaining to the legal elements ofthe criminal charges. Likewise, such a position does not in any way preclude the Appellant from arguing that Judiciary Law Section 21 has been applied in both a factual context and 3The only error in the analysis was that the motion sometimes conflated a factual determination with resolving credibility issues which are two distinct concepts. However, there is no question that the CPL Section 330.30(1) motion correctly noted that the trial order of dismissal requires a factual assessment and determination which impacts on legal sufficiency and precludes the utilization of a substituted judge via Judiciary Law Section 21. 11 with regard to legal rulings ofmotions pertaining to legal issues. As noted previously, the invocation of Section 21 is predicated on the oral argument of a question before a particular judge and not the nature ofthe particular question before the court. More importantly, any factual determination during litigation would be paramount in the invocation of the principle that a single judge is instrumental in adjudicating such an issue and should not be replaced by a substitute judge. Rather, in the context ofa trial issue or ruling, the only appropriate remedy is the declaration of a mistrial and not merely vacating an order once a Section 21 violation has occurred. The import of the Smith case as well as the litany of cases involving the application of Judiciary Law Section 21 regarding a question litigated during a trial is that the appropriate remedy for a Section 21 violation is the declaration ofa mistrial as the fact finding process has been compromised by an attempted review via a substituted judge. Once again, the Respondent has attempted to suggest an alternative remedy which is clearly inappropriate in the context of a Section 21 violation pertaining to a trial determination. A trial order of dismissal adjudication is an important trial ruling mandating a factual assessment of the evidence as it impacts on legal sufficiency. The factual determination pertaining to a trial order of dismissal is a significant, substantive finding which mandates the declaration of a mistrial. 12 A trial order of dismissal is not a post-trial application and it is not purely a legal issue. It is a trial application which requests a court to render a factual assessment ofthe evidence in order to determine the issue oflegal sufficiency. Judge Carter engaged in such a determination and it was error for the substitute judge to engage in a similar inquiry while ignoring the observation and conclusion of the trial judge. For these reasons, there has been no waiver of any argument and a Section 21 violation relating to a trial ruling warrants the proper remedy of a mistrial declaration and the ordering of a new trial. 13 POINT II THE APPELLANT DID NOT WAIVE ARGUMENTS PERTAINING TO THE ABSENCE OF EVIDENCE AT THE TRIAL ORDER OF DISMISSAL ORAL ARGUMENT IN COURT AND THE TRIAL COURT EMPHASIZED THOSE ISSUES DURING THE EXCHANGE WITH THE PROSECUTOR WHILE SUBSEQUENTLY PERMITTING BOTH PARTIES TO FILE A WRITTEN MOTION ON A TRIAL ORDER OF DISMISSAL The Respondent initially asserts that the Appellant has somehow waived issues relating to the absence of evidence at the trial order of dismissal argument during the trial. Although counsel's post-trial motion was more expansive on the absence of evidence (e.g. no recovery of a weapon; no identification of defendant; no physical evidence; DNA evidence from shell casings that match a DNA profile on record and not the defendant), it cannot be said that the issue was waived as trial counsel initially argued that the "sole evidence" establishing a linkage to the defendant were the purported statements heard by Ms. Nelson from the defendant. (A.711). Further, counsel argued that the remaining evidence was peripheral (e.g. who Mr. Hampton was with that evening and his truthfulness with Detective Re) and argued that the People had not proven their case. (A.712-713). Although an argument regarding the absence of specific evidence need not be detailed as opposed to the failure of the presented evidence to establish legal 14 sufficiency, trial counsel established the contour of the argument by asserting that the sole evidence was not credible and that there was no other evidence presented which impacted on the issue of legal sufficiency. The issue is even less significant in the context of the trial judge's remark who commented specifically on the absence of proof issue and the overall circumstantial nature ofthe case. Judge Carter specifically challenged the prosecutor on the issue of proof with regard to establishing pre-shooting evidence of motive based on the testimony ofNikki Gray as direct evidence. (A.714-715). The trial court specifically asserted, "once again, there is no direct evidence that says previous to the homicide." (A.715).4 Further, the trial court opined that the DNA evidence from the bullet shell casings match DNA recovered from a screwdriver recovered from an unrelated crime. (A.715-716). Ultimately, the trial court elected to reserve decision after noting the entire case is purely circumstantial. Under such a scenario, it is hard to understand how the Respondent can proffer a waiver argument. Additionally, the court reserved decision and permitted both sides to present the issues on written papers. Accordingly, trial counsel filed a CPL Sec. 4At the trial order of dismissal argument, the prosecutor transforms Detective Re's assertions that the Appellant asserted he would not care if his girlfriend had another boyfriend because he had other girlfriends into he knew that Nikki Gray and the deceased had a sexual relationship prior to the murder. It is another example of shifting statements to suit a prosecutorial theory. 15 290.10(1) and 330.30(1) motion for a trial order of dismissal and/or to set aside the verdict motion and extensively reviewed the factual evidence while outlining a comprehensive factual and legal analysis supporting a trial order of dismissal application. All of the arguments concerning absence ofmotive, the DNA evidence, and Ms. Nelson's testimony were evaluated in the motion papers. The Respondent's briefsuggests the motion was solely a Section 330.30 motion but the motion is labeled a Section 290.10(1) motion, and Judge Palmieri conceded he reviewed the trial order of dismissal issue in his decision. It is hard to understand how if a trial court invites counsel to submit written argument on a trial order of dismissal application, the District Attorney can argue that the appeal is limited to the oral argument at the trial order of dismissal and not the argument contained in the written motion which is properly labeled a CPL Section 290.10(1) application. Accordingly, the waiver argument has absolutely no merit. Trial counsel and the court referenced the absence ofevidence during the oral argument in the trial order of dismissal application in court. (A.806). Further, the trial court invited both sides to submit motions and noted that the defendant had "reserved all his rights regarding the nature and quality of the evidence that was introduced in this case" at the October 30, 2009 court proceeding when the trial court announced a conflict of interest in presiding over the litigation. (A.752-756). Under all these circumstances, it is hard 16 to fathom how the Respondent can argue that the arguments regarding the absence of evidence in the written CPL Section 290.10(1) motion were waived simply because they expanded upon the argument initially raised at the oral argument on the trial order of dismissal. The trial court invited the written motions on the issue and it is clear that those arguments are reiterating and expanding on the issues articulated during the original oral argument. For these reasons, the Appellant did not waive the arguments expressed in the written motion which were invited by the trial court, and expanded on the oral argument during the trial order of dismissal application in open court. A. The Nelson Testimony was both Incredible and Patently Absurd in the Creation of a Fictitious Individual at the Crime Scene In the Respondent's brief, the District Attorney tries to argue that perhaps Shamiqua Nelson saw from her "vantage point" an individual while others were preoccupied with the crime scene. Ms. Nelson testified that an undescribed female was present at the crime scene shortly after the shooting screaming "he did it" and pointing at the defendant's residence. Joel Delacruz was inside the Nissan Maxima and never noticed any such individual. Sharnae Moore, the girlfriend ofthe deceased Kareem Sapp, never observed any such individual while she was outside the car, and Nikki Gray did not corroborate this alleged observation. Neither of the two 17 responding officers to the homicide scene viewed any such individual. Despite these facts, the Respondent seeks to argue that the deceased's girlfriend and Mr. Delacruz had a relationship with the Appellant which would influence their observations. There is no support to this argument just as her "vantage" was far worse than the location of these three individuals to the shooting. Ms. Nelson fabricated an individual at the crime scene which lends credence to the view she is incredible as a matter of law. When the Appellant arrived at 796 North Gate Drive several hours after the shooting, he was interviewed by two detectives in a squad car for approximately ten minutes without any indication of a "stutter." On July 23,2008, he was interrogated by Detective Re for four hours and there was no suggestion of a stutter in his vocal pattern. None of the witnesses and family members ever indicated he had a "stutter" in his vocal pattern. Yet, Ms. Nelson testified she supposedly heard a stuttering defendant, several hours after the incident, while halfway up a staircase, assert, "I didn't mean to do it, she tested my manhood." Ms. Nelson could not recall the context of the statements, the questions being asked to probe their responses, or the individuals these remarks were addressed toward at the time, despite the fact that she lived at the residence. For the Respondent to suggest that the Appellant suddenly became excited and developed a stutter is absurd. Ms. Nelson contrived this circumstance due to her jealousy involving the Appellant's relationship with her 18 baby's father, Eugene Vereen. Her testimony IS infected with a pattern of unbelievability and a complete lack of credibility. B. The Purported Evidence of Corroboration Lacks Any Probative Import on the Identity of the Shooter The Respondent references several anecdotal, isolated pieces of evidence and attempts to hoist them on the mantel of corroboration. In reality, none of these items furnish any probative import on the issue of the identity of the shooter. Whether the Appellant changed the appearance ofhis hair during the day from cornrows to an Afro genuinely establishes nothing as he spoke to members of law enforcement about his whereabouts and was visibly observed by many individuals during the course ofDecember 18, 2007. There is some dispute about the appearance ofhis hair from the witnesses, but the shooter was allegedly wearing a black hoodie; accordingly, his style of hair is a non-issue on the question of identity. The Respondent continually attempts to portray Nikki Gray as a liar who is protecting the defendant. However, no matter how many questions the District Attorney posed about her recitation of the events of the shooting, she is not contradicted by Sharnae Moore or Joel Delacruz about the shooting sequence. None of these witnesses could identify the shooter despite their proximity to the incident, and the fact that Delacruz and Gray differ on the direction the shooter ran from does 19 not matter when it is conceded that North Gate Drive is shaped in a horseshoe and both sides lead onto Jerusalem Avenue. Likewise, ifmere presence at the scene of a crime is not evidence ofguilt, how does proximity become a bellwether for culpability. The Respondent wants to suggest that the Appellant knew about the sexual relationship between the deceased and Nikki Gray, but the testimony was that Gray never told him prior to the shooting and there were only rumors of possible involvement. The Respondent continues to twist the record by asserting, "Gray's proximity to the shooting suggests that she may very well have seen the shooter." (p. 34 Respondent's brief). Ms. Gray, and the other witnesses, testified to exactly the opposite and, in the case of Ms. Gray, she was getting her pocketbook from the Appellant's vehicle when she heard shots and ducked for cover. (A.172-173). At one point, the Respondent asserts that Gray is distorting the truth to protect the Appellant, but the brief later concedes she did confirm Delacruz's description of the shooter as "tall and thin, dressed in black." (p. 36 Respondent's brief). The Respondent is trying to suggest she is truthful when she corroborates a fact which assists the prosecution, such as the description of the shooter, but she is a liar with regard to her description of the shooting incident. Once again, the Respondent is attempting to sustain its position despite contradictory references in the trial transcript. 20 The Respondent refers to these conflicting inferences as proof. These anecdotal pieces of information provide no probative value on the issue of identity any more than Detective Re's interrogation on a litany of issues which did not result in further revelation on the identity ofthe shooter. The questioning ofthe Appellant on his past sexual history, the past use of firearms and his whereabouts on December 18, 2007 may have been intended to obtain a damaging admission, but it simply did not result in any oral admission pertaining to the shooting in this case. In the final analysis, there is no corroborative evidence of any kind. There is no identification evidence and no physical evidence which link the Appellant to the crime. Likewise, the DNA evidence points to another individual as the perpetrator and the assigned detective never sought to compare the DNA result with the other subjects in his homicide notebook. There is only Shamiqua Nelson who creates fictitious characters at a homicide scene and testifies in a cynical and argumentative manner. Her testimony is simply insufficient as a matter of law. 21 CONCLUSION This court should order a new trial based upon the Judiciary Law Section 21 violation or, alternatively, vacate the conviction predicated on a finding of legal insufficiency. Dated: Mineola, New York September 11, 2012 Respectfully submitted, \ SE H A. GENTILE FRANKIE & GENTILE, P.C. Attorneys for Defendant-Appellant 1527 Franklin Avenue, Suite 104 Mineola, NY 11501 (516) 742-6590 22