The People, Respondent,v.Grady Hampton, Appellant.BriefN.Y.April 23, 2013Appellate 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 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: April 23, 2012 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The People’s Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Eyewitnesses and First Responders. . . . . . . . . . . . . . . . . . . . . . . 6 DNA Evidence and the Absence of Scientific Corroboration. . . 10 Cell Phone Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Detective Carl Re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 July 23, 2008 Interrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 The Defense Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Trial Order of Dismissal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Verdict and Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 ARGUMENT POINT I It was Error and a Violation of Judiciary Law Section 21 For a Substitute Judge to Adjudicate and Decide a Trial Order of Dismissal Motion Which Had Been Argued and Litigated Before the Original Trial Court Judge who Subsequently Recused Himself from the Litigation . . . . . . . . . . . . . 30 A. Judiciary Law Section 21 and the Applicable Law . . . . . . . . . . . 30 ii B. The Trial Order of Dismissal Motion was Orally Argued Before the Original Trial Judge . . . . . . . . . . . . . . . . . . . 39 POINT II The Testimony of Shamiqua Nelson is Legally Insufficient to Support the Conviction for Homicide and Weapons Possession in this Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 iii TABLE OF AUTHORITIES Page Statutes Rule 25(A) Federal Rules of Criminal Procedure . . . . . 36 Judiciary Law Section 21. . . . . . . . . . . . . . . . . . . . . . . . . . 30-32, 35, 42, 52 Criminal Procedure Law Section 330.30(1). . . . . . . . . . . .5, 27-29, 38, 41, 43 Criminal Procedure Law Section 280.10. . . . . . . . . . . . . . 43 Criminal Procedure Law Section 290.10. . . . . . . . . . . . . . 28-29 Criminal Procedure Law Section 5602 . . . . . . . . . . . . . . 1 Cases People v. Acosta, 80 N.Y.2d 665 (1993). . . . . . . . . . . . . . 45 People v. Arroyo, 54 N.Y.2d 567 (1982). . . . . . . . . . . . . . 49 People v. Contes, 60 N.Y.2d 620 (1983). . . . . . . . . . . . . . 49 People v. Danielson, 9 N.Y.3d 342 (2007) . . . . . . . . . . . . 45 People v. Thompson, 90 N.Y.2d 615 (1997). . . . . . . . . . . 37 Smith v. State of New York, 214 N.Y. 140 (1915). . . . . . 30 Bonasera v. Town of Islip, 19 A.D.3d 525 (2d Dept. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 Clover-East Associates v. Bachler, 23 A.D.2d 620 (4th Dept. 1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Evans v. State of New York, 29 A.D.2d 611 (3d Dept. 1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Gayle v. Port Authority of New York and New Jersey, 6 A.D.3d 181 (1st Dept. 2004). . . . . . . . . . . . . . . . . . . . . . . 32 Matter of Connelly-Logal v. West, 272 A.D.2d 920 (4th Dept. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31, 33 Michel v. Michel, 31 A.D.2d 313 (4th Dept. 1969). . . . . . . 33 People v. Brun, 58 A.D.3d 862 (2d Dept. 2009). . . . . . . . . 45 People v. Cameron, 194 A.D.2d 438 (1st Dept. 1993). . . . . 34 People v. Carthens, 171 A.D.2d 387 (1st Dept. 1991). . . . . 49 People v. Diaz, 201 A.D.2d 580 (2d Dept. 1984). . . . . . . . 45 People v. Garcia, 237 A.D.2d 42 (1st Dept. 1998) . . . . . . . 49 People v. Hopper, 22 A.D.2d 1006 (4th Dept. 1964) . . . . . 34 People v. Thomas, 45 A.D.3d 483 (1st Dept. 2007) . . . . . . . .36 iv People v. Thompson, 222 A.D.2d 156 (2d Dept. 1996) . . . . .35-36 State v. General Elec. Co., 215 A.D.2d 928 (3d Dept. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Morris-Imhoppe v. State of New York, 22 Misc.3d 545 (Ct. of Claims 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 1 PRELIMINARY STATEMENT The defendant-appellant (hereinafter referred to as “appellant”), Grady Hampton, has appealed from a judgment of the Supreme Court, Nassau County, convicting him of one count of Murder in the Second Degree and two counts of Criminal Possession of a Weapon after a jury trial before the Hon. Jerald S. Carter. After Judge Carter issued an order of recusal, Mr. Hampton was sentenced on April 23, 2010 by the Hon. Daniel R. Palmieri to an indeterminate sentence of twenty (20) years to lifetime incarceration 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. Additionally, a mandatory surcharge of $250 was imposed along with a crime victim assistance fee of $20 and a $50 DNA assessment. A notice of appeal was filed with the court on April 26, 2010. The indictment number of this case was 1672N08 and this appeal is proceeding with a filed appendix. A notice of appeal was filed and on June 21, 2011, the Appellate Division, Second Department, affirmed the conviction. On February 28, 2012, Associate Justice Robert S. Smith granted leave to appeal to this Court, which has jurisdiction to review this matter pursuant to CPLR Section 5602. 2 STATEMENT OF FACTS Introduction This case involves the death of Kareem Sapp, a nineteen (19) year old male, who was shot several times at close range on December 18, 2007 at approximately 5:00 p.m. near his vehicle at 805 North Gate Drive in Uniondale, N.Y. Mr. Sapp, who had two passengers in his vehicle, was attempting to provide a ride for Martinique Gray (hereinafter Nikki), who required a ride for school and was the girlfriend of the appellant. The witnesses who observed parts of this incident could not identify the assailant and could only provide a general description of the shooter. The remarkable aspect of this case is that there is no physical evidence which links the appellant to the crime, e.g., the recovery of a weapon, fingerprints or trace evidence. Moreover, DNA evidence taken from the shell casings recovered near Mr. Sapp’s vehicle and in the trunk of the car did not match the appellant; however, the DNA profile did match another individual’s profile taken from a screwdriver recovered in a stolen car case in Elmont, New York. It should be noted that the appellant’s first trial in this case ended in a hung jury in Nassau County Court. In fact, the People’s case was premised on the testimony of Shamiqua Nelson who initially denied any knowledge about the incident. Several months later, after a detective lied to her about overhearing her voice on wiretaps, she asserted that later 3 in the evening on the date of the homicide, she was present at 796 North Gate Drive (the home of the Vereen family) where she heard the appellant state, “she tested my manhood - I didn’t mean to do it,” and “I put it in the woods.” She could not state who these statements were made to or place any context to them as she was halfway up a stairwell and the appellant was stuttering. Her testimony was contradicted by three defense witnesses who were present at that time and could not recall hearing any such statements or observing Ms. Nelson near the appellant. Further, she asserted that immediately after the shooting, she went outside and in addition to observing Sharnae Moore and Nikki Gray near Mr. Sapp’s body, she observed a third female pointing at 808 North Gate Drive (house of appellant) screaming “he did it, he did it.” This observation was completely contradicted by the three witnesses at the crime scene as well as the responding police officer. Her recollection of this scenario has never been corroborated by anyone. The balance of the People’s case was based on the testimony of the carrying detective, Carl Re. Detective Re, who consistently characterized his post-arrest interview on July 23, 2008 of Grady Hampton in an argumentative fashion, was rebuked by the trial court who described him at a sidebar conference as “running his mouth,” “embellishing” and “not answering the questions.” The detective attempted to dissect the appellant’s version of his whereabouts on December 18, 2007 in such 4 a manner as to portray him as a liar and not worthy of credibility despite the fact that Mr. Hampton voluntarily provided an initial statement to police in a squad car on December 18, 2007. Further, defendant’s statements remain essentially consistent and he has maintained his innocence throughout this matter. These interviews were never videotaped, audio recorded or reduced to writing. Moreover, the notebook of the detective revealed other individuals who were subject to scrutiny with motivation to commit this homicide, including a member of the “Bloods” street gang with a criminal history who threatened to rob the deceased, and an individual involved in an illegal check cashing scheme with the deceased. The detective did not conduct any extensive investigation pertaining to these suspects. At the conclusion of the People’s case, the defense moved for a trial order of dismissal before Judge Carter. At that time, the defense attorney argued that the admissions of the appellant were vague and somewhat ambiguous from an unstable witness; accordingly, legal sufficiency had not been established. In response, the District Attorney argued that the appellant had the time and opportunity to commit the crime, as well as a motive, based on the pre-shooting sexual involvement of Nikki Gray with the deceased. Judge Carter asserted that the People had not established motive by demonstrating that the appellant had knowledge of the pre-shooting sexual encounters. 5 Further, the trial court commented on the circumstantial nature of the case and the contrary DNA findings which did not link the appellant to the crime. The trial court reserved decision on the motion; however, about one month after the verdict, the trial court recused itself from the case and the matter was transferred to a substitute judge. The replacement judge denied a motion for a mistrial and adjudicated the trial order of dismissal motion, despite the fact that the motion had been orally argued in open court before Judge Carter. Further, Judge Palmieri contradicted Judge Carter by concluding, after reviewing the trial transcript, that the People had established motive based on neighborhood rumors and menacing looks between the appellant and the deceased. He also reviewed the factual evidence and concluded there was legally sufficient evidence to support the conviction after improperly entertaining a CPL Section 330.30 motion which included a request for a trial order of dismissal. There are two significant issues to be raised before the court. First, the assigned trial judge, who had the opportunity to review the testimony, as well as the demeanor and quality of all the witnesses, elected to recuse himself after presiding over an orally argued legal motion and prior to adjudicating the trial order of dismissal application. It is submitted it was error and a violation of the Judiciary Law for a substitute judge to adjudicate a pending trial order of dismissal application as the substitute judge did not preside over the original trial order of dismissal motions. Secondly, the absence 1A reference in the parentheses with the letter A pertain to the appendix filed with the court. 6 of any direct evidence of guilt combined with a DNA profile that does not match the appellant warrants review that there was legally insufficient evidence to support the verdict rendered by the jury. It is submitted that Shamiqua Nelson is a troubled and unstable witness who is incredible as a matter of law; accordingly, her tortured testimony is the only evidence which links the appellant to this crime. The People’s Case In this litigation, the prosecutor presented a series of witnesses which included three eyewitnesses to the event, a group of law enforcement personnel involving forensic analysis issues including the negative DNA results and two feature witnesses: Shamiqua Nelson and Detective Carl Re. There was also some testimony regarding the utilization of cell phones and the manner wherein certain cell phone messages would be consistent with the possible geographical location of the phone user. Eyewitnesses and First Responders The trial jury was presented with three eyewitnesses who were near the location of the homicide at the time of the incident. Sharnae Moore had been dating Kareem Sapp for about one year and obtained a ride from the deceased and a friend, Joel Delacruz, at about 4:30 p.m. on December 18, 2007. (A.109-110).1 Delacruz had 7 known the deceased since high school and indicated he was in the back passenger seat of Sapp’s vehicle, a green Nissan Maxima, when Sapp received a phone call to pick up Nikki Gray. (A.87-91). Martinique (Nikki) Gray was the girlfriend of the defendant who needed to leave for school by 5:15 p.m.; however, there was no gas in the Dodge Intrepid she and the appellant frequently shared, so she called Kareem Sapp to obtain a ride at 4:57 p.m. (A.144, 156-158; 168). After the deceased, Delacruz and Moore arrived at North Gate Drive at approximately 5:03 p.m., Delacruz recalls the deceased exit the vehicle while the car was running and removing items of clothing from the back seat into the trunk in order to make room in the car for Ms. Gray. (A.91). Ms. Moore, in the front passenger side of the vehicle, indicated she observed Nikki Gray exit the residence at 808 North Gate Drive when she heard Nikki and the deceased speaking towards the rear of the vehicle. (A.113). Nikki Gray asserted that she initially placed some clothes in the back seat of the Maxima; thereafter, she went to the Dodge Intrepid to obtain her pocketbook after exiting the house, put the car key in the door, heard three or four gunshots and observed Kareem Sapp fall to the ground. (A.172-173). Sharnae Moore’s recollection was that she heard Kareem and Nikki speaking with one another, subsequently heard shots, and asked Joel Delacruz, “was that a BB gun” who responded negatively. (A.113-114). After observing the deceased on the 8 ground, Moore asked Nikki Gray what happened, but Ms. Gray indicated “she did not know.” Both females walked over to assist the deceased and called 911. (A.114). Sharnae Moore could not provide any description of the individual who shot the deceased as she did not observe the individual assailant; however, she did indicate about twenty minutes later, she received an inquiring phone call from Travis Webley, a known gang member of the “Bloods”. (A.116, 125-126). Joel Delacruz initially walked away from the scene although he was interviewed the next day. Although he was in the rear seat and could only observe the events through a crack between the rear seat and the raised trunk, his subsequent description of the assailant was a male over six feet tall, dressed in black with a hood. (A.92-93). Ms. Gray testified that she observed a person dressed in all black running in a northerly direction toward 816 and 822 North Gate Drive. (A.175). Ms. Gray also confirmed that it was dark outside and she could only see the back of the individual. (A.174-176). Although Gray and Delacruz indicated the assailant was moving in different directions, North Gate Drive is in the shape of a horseshoe and the street on both sides exits into Jerusalem Avenue. Ms. Gray’s testimony also commenced a battle regarding the interpretation of certain motives and occurrences. For example, the prosecution asserted throughout the trial that the appellant had shot the deceased because Kareem Sapp previously had sex with Ms. Gray, who was the girlfriend of the appellant for several years. Ms. 9 Gray testified she had never told Grady Hampton that such an event occurred prior to December 18, 2007, despite rumors to the contrary. (A.151-152, 154-155, 192). Further, she was cross-examined about her 911 statement on the phone - “I’m going to kill em” - which the prosecution interpreted as a reference to the appellant, but she testified was her reaction to the delay in obtaining an operator on the 911 system. (A.209-210). She further testified that the appellant was not wearing a black hoodie when she observed him in the late afternoon as he was going to Terry’s house to purchase some sneakers for his brother on Jamaica Avenue that day. (A.219). She also testified that two weeks prior to the shooting, the deceased, whom she had sex with on two or three prior occasions, had a problem with cashing stolen checks with someone named Sherwin. (A.201-202). P.O. Craig Croly indicated he received a 5:10 p.m. radio call for an aided case at 805 North Gate Drive when he observed two women crying on either side of a young man on the ground who did not respond to CPR, and was transported to Nassau County Medical Center. (A.52-55). He noted that the trunk was open on the green Nissan Maxima and the described location of the appellant’s vehicle, a white Dodge Intrepid with Virginia license plate 5LIM126. (A.56-57). P.O. Tricia Tortoso, who also responded to the scene, testified there were bullet casings in the trunk and on the street near Sapp’s vehicle. (A.71-73). 10 In evaluating the subsequent testimony of Shamiqua Nelson, Police Officer Croly testified that he never observed a woman at the crime scene screaming or yelling “he did it, he did it” while pointing at the appellant’s residence at 808 North Gate Drive. (A.65) (emphasis added). Despite the fact that none of the witnesses at the crime scene corroborated the Nelson observation, the prosecution sought to credit her testimony. It is obvious Ms. Nelson manufactured a non-existent individual in order to assist in harming the appellant with whom she had a poor relationship. DNA Evidence and the Absence of Scientific Corroboration Detective Thomas Salvato from the Crime Scene Search Unit processed the crime scene for photographs as well as the recovery of any physical evidence. (A.324-325). In addition to videotaping the scene and obtaining numerous photographs, he photographed six (6) shell casings (three found in the trunk, three on the ground), along with cigarette butts, papers, a water bottle and two motor vehicles. (A.324-327). He also photographed a bullet hole which traveled through a window into a wall at 805 North Gate Drive and extracted the bullet from the wall. (A.329- 331). Likewise, the green Maxima was taken to the garage at the Bellmore police facility where a black glove, some clothing and three (3) latent fingerprints were lifted from the vehicle. (A.326, 333-336). Although most of the results of the scientific evidence were rather 11 inconsequential and not dispositive on the issue of identity, the DNA analysis was significant. Erika Sima, a forensic geneticist, was requested to conduct a DNA profile on the six shell casings as well as the cigarette butts and the black glove. (A.362-364). Although the results of the glove and the cigarette butts revealed female donors, the six (6) shell casings developed a DNA profile for an unknown male individual. (A.364-365). Thereafter, law enforcement arranged a police stop of the appellant from a vehicle and secured a Dasani water bottle discarded by Grady Hampton. Ms. Sima conducted an analysis of the water bottle which resulted in a major and minor contributor on the water bottle. Most importantly, neither contributor matched the DNA profile on the six (6) shell casings. (A.366-367, 369-370). Additionally, the geneticist conducted a DNA search which indicated that the DNA recovered from the shell casings also matched DNA of another individual taken from a screwdriver which was recovered in an unrelated auto theft case in the Elmont area. (A.373-374). Accordingly, DNA secured from a bottle discarded by Grady Hampton affirmatively did not match the DNA profile from the six shell casings recovered from the crime scene. Dr. Brian O’Reilly, a forensic pathologist, testified that the deceased sustained three gunshot wounds, including a close contact wound to the chest. (A.226-227, 12 230). Two of the discharged shots were lethal in nature and there were cannabinoids detected in the bile and urine of the deceased. (A.236, 240). He defined a close contact discharge at less than one-half inch and concluded the two bullets recovered were fired from the same gun. (A.230). Detective Scott Kovar of the Trace Evidence Section of the Forensic Evidence Bureau testified he examined the black glove for gunshot residue. (A.391). He asserted that he found one single particle of lead and barium on the glove, which was consistent with the glove being near an ejected cartridge as opposed to the glove being worn by the shooter, which would have resulted in additional findings on the glove. (A.393). On cross-examination, Det. Kovar acknowledged that if an individual had fired a weapon six times while wearing a sweatshirt, gunshot residue would be typically present after such incident. (A.395). Det. Christopher Armstrong of the Latent Fingerprint Section of the Forensic Evidence Bureau testified that three latent prints were secured from the doors of the green Maxima of the deceased. However, two of the prints were from Nikki Gray and the third was from Kareem Sapp, whose fingerprints were also recovered on all the compact disks recovered in the vehicle. (A.410). Cell Phone Records Detective Joseph Nuzzo of the Electronics Squad examined the Sprint records 13 for the telephone records assigned to the appellant’s phone (434-709-7008) on December 18, 2007. (A.400). He indicated that this particular phone unit appeared in Uniondale, Freeport, Massapequa, Amityville and Farmingdale and did not appear in Queens County. (A.401). On cross-examination, he conceded that there could be multiple cell towers in a particular town and that the range of a tower could extend into a neighboring town. (A.402-403). He further acknowledged that the records revealed no information from 5:00 p.m. to 6:20 p.m. on this phone for December 18, 2007. Susan Johnson was a custodian of records for T-Mobile and explained how cell phones utilize towers to relay signals and text messages utilize data servers. (A.305). She indicated that there were numerous text messages between Nikki Gray’s phone and the appellant’s phone from 4:00 p.m. to 4:53 p.m., with contact at 5:02 p.m. and a later one at 5:17 p.m. (A.313). She also stated that the contents of the text messages are not kept due to the volume of materials by phone companies. (A.312). Ms. Johnson also explained that Kareem Sapp’s phone revealed an incoming call at 4:57 p.m. and an outgoing call at 5:03 p.m. (A.316). On cross-examination, she asserted there are three different cell towers in Uniondale and an analyst cannot determine the direction of the phone in relation to the cell tower. (A.320-322). Shamiqua Nelson 14 On December 18, 2007, at about 4:00 p.m., Ms. Nelson, who had initially stated she had no knowledge about these events or involvement with the killer, testified she had seen Grady Hampton walking to his home with his hair braided in cornrows. (A.248). Ms. Nelson lived at 796 North Gate Drive with the father of her child, Eugene Vereen, and his family. At about 5:00 p.m., she was in the upstairs bedroom while Brandon Vereen, Chantel Vereen and Ms. Nelson’s baby daughter were present in the house. (A.249-250). While she was downstairs with Brandon and her two year old daughter, she heard gunshots and told the police in her written statement that while observing Sharnae Moore leaning over the body and Nikki Gray standing there, she observed a third female pointing at 808 North Gate Drive screaming “he did it, he did it.” (A.280). She could not describe this person in any detail or provide a description of her clothing. Several hours later, at the Vereen home, she indicated Grady Hampton came to the house wearing a black hoodie and his hair was unbraided. (A.254). She said all of the Vereens were at the house, including the girlfriends of Andrew and Andre, although this fact was contested as Francesca (girlfriend of one of the twin brothers) was not at the location according to several defense witnesses. (A.255, 569, 611). Ms. Nelson stated that Cheryl Tate (the mother) asked the girls to go upstairs; however, this fact was contested by Ms. Tate in her testimony. (A.569). 15 Ms. Nelson asserts that as she was halfway up the stairwell, she heard a stuttering appellant state, “she tested my manhood - I didn’t mean to do it” and also “he put it somewhere - he put it in the woods.” (A.260-261). She could not recall the context of the statements, the questions being asked to probe these responses, or the individual these remarks were addressed toward at the time. At several points during her testimony, she asserted she could not recall the specifics of the statements and had to be reminded of her grand jury testimony. (A.260-262). On the following day, she indicated that Andre Vereen had come to the house with gloves on his hands. In March of 2008, she conceded that Detective Re had approached her and told her “I know you know something” and she proceeded to cry. (A.265). Further, he told Ms. Nelson that law enforcement had wiretaps and had listened to her conversations. (A.293). On cross-examination, Ms. Nelson conceded that she can’t remember time and that she never told Sharnae Moore, the girlfriend of Kareem Sapp, any of these statements by the appellant. (A.291-292). Further, she expressed some hostility over the amount of time the father of her baby, Eugene, spent with Grady Hampton. (A.297). There is a concession by her that she used Ritalin and the following statement which summarizes the essence of the quality of her testimony. You’re confusing me. I can’t even remember anything right now, besides what you just said to me. I’m actually confused right now. Seriously. 16 (A.302). Detective Carl Re Without a doubt, the most controversial testimony concerned the manner that Detective Re proceeded with regard to this investigation including his interview of the appellant several months after the homicide. The detective continually placed emphasis on any incriminating aspect of circumstantial facts and downplayed or mitigated exculpatory factors pertaining to the investigation. He permitted his suspicions to direct an investigation, rather than objectively evaluating the evidence and tailoring the investigation to analyze factors in a transparent fashion. During the first trial in Supreme Court, Nassau County, trial counsel for the appellant unearthed the existence of a seventy (70) page homicide notebook pertaining to this investigation. The notes, which clearly contained exculpatory information (Brady material), were not provided until the cross-examination of the witness and were later subject to the re-opening of a Dunaway-Huntley hearing. The notes revealed that there were several potential suspects on the police radar who were not subjected to the same level of scrutiny as the appellant. In terms of his trial testimony, Detective Re indicated he responded to the shooting scene at 5:45 p.m. (A.418). At about 8:30 p.m., after Crime Scene had arrived and there was a preliminary interview of witnesses, Grady Hampton arrived 17 home and was interviewed voluntarily in a squad car by Detective Brosnan and Detective Ruvola. (A.421). The description of Grady Hampton by Detective Ruvola in the notes has no reference to his wearing a black hoodie during this interview. A.487, 498). Further, there is no question that the appellant provided a statement concerning his whereabouts that remained essentially consistent with the statement he would later make at the homicide squad on the date of his arrest, July 23, 2008. Initially, in an effort to support the theory that there was a “no snitch” policy in Uniondale, he testified that he confronted Nikki Gray and her mother at the homicide squad on December 26, 2007, essentially telling them that he did not believe Nikki’s absence of recalling significant information relating to the shooting was possible unless she was engaging in a coverup. (A.424-425). At the trial, he asserted “you didn’t see a gun, you didn’t see the flash of a muzzle - you didn’t see anything. . .” and thereafter requested that she take a polygraph examination. (A.425). Nikki Gray and her mother contacted a former Hempstead Village justice who later advised them that polygraph results are inadmissible in court. (A.561-562). In January of 2008, Detective Re secured the Dasani water bottle taken from the appellant which was submitted for forensic analysis, although a written report was not generated until April of 2008. (A.429-430). In March of 2008, the police were given the name of Shamiqua Nelson, who provided a statement under the circumstances 18 where a weak individual was pressured to provide information under the false pretense that her phones had been wiretapped. (A.430-431). Despite the fact that negative results had occurred relating to the DNA evidence in April of 2008, the detective elected to arrest Grady Hampton on July 23, 2008 and engage in a four hour interrogation without the benefit of a videotape, audio recording or signed written statement. (A.508-509). July 23, 2008 Interrogation After arresting the appellant on Walton Street in Uniondale, N.Y., he was transported to the homicide squad and placed in a 10' x 10' room with one arm handcuffed to a wooden chair. (A.434). The interrogation would commence at 4:00 p.m., and would continue until an attorney called the squad room some four hours later. At 4:00 p.m., there were some background questions including the fact that he had been working as a teacher’s assistant at the Tyree Learning Center in Sea Cliff for three years. After discussing where he resided and that he had been dating Nikki Gray for four years, Miranda warnings were administered to the appellant. (A.434-437). The appellant purportedly told the detective that he came home from work around 3:30 p.m. and “smoked some weed.” (A.438-439). Nikki Gray had used his car and returned home around 4:00 p.m. to 4:30 p.m. The first area of dispute was text messages as the detective told Mr. Hampton the records showed that he had texted 19 Nikki before and after work - a claim disputed by the appellant. (A.439). In a continuing pattern of embellishing, the detective asserted that the appellant “changed his story” about whether he knew there was gas in his vehicle when Mr. Hampton asserted he had checked the car when he had left his house. (A.440). The next interview area related to his whereabouts prior to the shooting. The appellant stated he went to Terry Nichol’s house and later met with Durrell Hill in order to purchase sneakers for his brother and a Secret Santa gift. Ultimately, he called another friend, Jamel, while in Uniondale who had a friend, Dashawn, who could drive them to Jamaica Avenue in Queens. (A.440-444). Later in the interview, the detective would challenge this assertion by telling him Terry Nichols had moved from Uniondale eighteen months earlier, and the stories of Durrell, Jamel and Dashawn “stink” with variations about going to Queens; further, the cell phone records demonstrated the phone never went into Queens. (A.448). The appellant responded that he had taken the batteries out of the phone and purportedly later stated, “I was lying about going to the Avenue - I was doing something else but I can’t tell you.” (A.448-449). One of the contradictory aspects of this interview occurred after the detective confronted the appellant with the fact that Kareem and Nikki were allegedly having sex. (A.445-446). Supposedly, the appellant initially indicated “I have three girls of 20 my own - I don’t give a fuck,” but later became visibly upset about this topic which segued into a discussion about his temper. (A.445). On the other hand, the detective indicated he had a nonchalant attitude about the sexual allegation, yet he purportedly became angry about this topic shortly thereafter. The detective volunteered that Grady Hampton appeared to be getting angry - yet he took a break from the interview around 6:30 p.m. After confronting him about the stories of the other individuals traveling to Queens, the interrogation shifted to the topic of possessing guns in Virginia and in New York. (A.449). The resolution of the interview supposedly occurred with a statement by the detective that, “we all make mistakes - you have to own up to your mistakes,” and the appellant responding, “Sometimes people make big mistakes.” (A.450). According to the detective, Grady Hampton placed his head in his hand and became teary when another “bathroom break” occurred and a subsequent phone call from an attorney transpires at 8:00 p.m. Unfortunately, an appellate record cannot reveal the demeanor and testimonial style of a particular witness, particularly during cross-examination. However, Judge Jerald Carter described it as follows at a sidebar prior to providing a curative instruction to the jury: 21 This detective has a penchant for running his mouth, and not answering the questions, and embellishing. Quite frankly, I’m tired of it. I’ll give an instruction to the jury. I’m directing that he answer just the question, the question asked, not anything more. Alright, I’m telling you, I told you this before, about him not answering the question and spinning. (A.529-530). This statement from the court occurred after defense counsel was examining Detective Re about the fact that several of the people who were possible suspects were members of the “Bloods” gang. Without any equivocation, Detective Re volunteered that law enforcement had information that the appellant was involved with the “Bloods” despite never being asked the question directly. (A.528). On cross-examination, the focus of the questioning related to the detective’s notebook which revealed several individuals with a possible motive for doing harm to Kareem Sapp. For example, law enforcement received information from a cousin of the deceased that an individual named Sherwin had found American Express checks on the street and that the deceased had tried to cash several of these bad checks. (A.474-476). There was an indication in the homicide notebook that Trevor Smith, a member of the “Bloods,” had punched and cut Kareem’s face in high school and that Smith and Sapp had stopped talking to one another for several years. This type of information had been provided by family members of the deceased, although Smith’s height (five feet, four inches) excluded him in the mind set of detectives (A.477-478). 22 However, the most provocative suspect was a known “Bloods” member by the name of Dante Carter. According to jail records, Mr. Carter was 5'11" tall, had a prior arrest for possession of a weapon and was in custody at the Nassau County Jail from July to October of 2007. The detective had received information from a friend of the deceased, Nicole Smith, that Carter had planned to rob Kareem Sapp, but ignored the lead because he erroneously thought Carter was 5'5" tall. (A.480-483). He shifted his position at the trial and later asserted his information revealed that Carter was 5'8" or 5'10" tall. (A.482). When confronted with the jail records, he tried to suggest that this individual may not be the same person. (A.483). Ultimately, he conceded that he never went out to look for this suspect or pursue this lead in any fashion despite the open DNA results on the shell casings. (A.484). In addition to failing to even address other potential suspects such as Trevor Smith or Dante Carter, Detective Re conceded that there was no corroboration for Ms. Nelson’s assertion that a third female was at the scene pointing at 808 North Gate Avenue and screaming “he did it.” (A.499). More importantly, he did not deem it appropriate to speak with any member of the Vereen home (Cheryl Tate, Brandon Vereen, Chantel Vereen, etc.) to verify the statements purportedly made by Grady Hampton and overheard allegedly by Shamiqua Nelson. (A.501-503). The Defense Case 23 At the trial, the defense called five witnesses to repudiate some of the allegations made by either Ms. Nelson or Detective Re in this case or to substantiate some portion of the events recited by the appellant in his statement to the police. Jerri Schofield, the mother of Grady Hampton, who formerly resided in Danfield, Virginia, testified that on December 18, 2007, she had a specific recollection of speaking with the appellant by telephone and talking about the shoe size of his younger brother so he could purchase sneakers for him at Christmas. (A.542). She indicated that they spoke about 3:00 p.m. and later at 5:00 p.m., but she did not detect any difference in his vocal tone on the phone. (A.543). Janine Gray, the mother of Nikki Gray, testified that she was present when her daughter was interviewed by Detective Brosnan at her home, as well as at the homicide squad on December 26, 2007. She recalled that Nikki told the detectives about the stolen checks scenario involving Kareem and that Sherwin was committing these acts with Kareem Sapp. (A.552-553). Further, she told them that Sherwin had threatened to kill Kareem because he had not received his portion of the money and the word on the street was that Kareem was going to be “bodied.” (A.553). On cross- examination, she disputed the suggestion of any inconsistency in Nikki's statements and rejected a lie detector suggestion after speaking with a retired judge. (A.561-562). Ms. Gray did concede that Kareem Sapp was often at her home, yet Nikki never 24 mentioned the rumor on the street about being “bodied.” The next four witnesses for the defense, Cheryl Tate, Gregory Hampton (uncle of Grady Hampton), Brandon Vereen and Chantel Vereen, were all called to dispute Shamiqua Nelson’s account at 796 North Gate Drive around 8:00 p.m., when the appellant arrived at the Vereen home. Cheryl Tate, the mother of the Vereen children, specifically testified that she never advised the girls in the house “to go upstairs” and has no recollection of observing Ms. Nelson at the home when Grady Hampton arrived there. (A.569-570). Tate denied ever hearing the appellant say, “she tested my manhood; I didn’t mean to do it,” and she denied hearing appellant state he had gotten rid of the gun in the woods. (A.570). She did acknowledge some hostility toward the police when they asserted one of her sons “got rid of a gun” and a deal could be “cut” if it was produced for them. (A.578). Gregory Hampton, the appellant’s uncle, testified that Grady Hampton entered the house at approximately 2:30 p.m. wearing a black flight jacket with no hoodie and jeans after speaking with two detectives at a car for about ten minutes. (A.583). He indicated that the appellant never made any of the statements allegedly heard by Ms. Nelson and he never observed Ms. Nelson on the first floor of the home. (A.584, 586). Brandon and Chantel Vereen contested various portions of the Nelson 25 testimony. Regarding the shooting incident at 5:00 p.m., both individuals either went outside or looked out the front door and neither of them observed a woman pointing at 808 North Gate Drive screaming, “he did it, he did it.” (A.590, 610). Further, Brandon Vereen denied a Shamiqua Nelson assertion that he looked out a window and asserted, “Grady is crazy” after the shooting. (A.596-597). Both individuals contested the allegations that the appellant made any of the remarks purportedly heard by Ms. Nelson with Brandon stating he never saw her at the house but Chantel indicating Shamiqua was upstairs in her bedroom at the time the appellant arrived at home. (A.591, 612). More importantly, Chantel Vereen indicated at the end of her testimony that the appellant and Ms. Nelson did not get along. (A.613). The defense rested after calling this series of witnesses who contested virtually every aspect of Shamiqua Nelson’s testimony. 26 Trial Order of Dismissal A trial order of dismissal was orally made after the People rested their case. Judge Carter entertained arguments from both the defense counsel and the People with regard to the import and weight of the wholly circumstantial nature of the evidence in this case. (A.531-536). However, those arguments also addressed issues of witness credibility as defense counsel clearly indicated that Ms. Nelson’s recollection was extremely vague and faulty about the context of the appellant’s statements inside 796 North Gate Drive. (A.532). Secondly, he argued that the statements themselves were so generic as to be imprecise regarding whether the admissions were genuinely related to the homicide in question. The prosecution argued that a motive had been established regarding the sexual conduct between Ms. Gray and Mr. Sapp, although the trial court noted it was unclear whether the appellant was aware of these activities prior to the shooting. (A.535). The prosecution and the trial court also disagreed about whether Detective Re’s testimony had established that the appellant was aware that the deceased and Nikki Gray had engaged in sexual activity prior to the shooting on December 18, 2007. The trial court opined that the case was totally circumstantial and he would reserve decision until after the trial, although various factual issues had been explored during the course of the oral argument. (A.535-536). On the following day, defense counsel 2The record is not clear as to the particular date Judge Carter became aware of the conflict issue, but he indicated the nature of the problem at a proceeding on October 30, 2009, and in his order of December 3, 2009. Specifically, the deceased was a nephew of the trial judge’s good friend who was a former associate minister at the church of the judge. The minutes of the proceeding on October 30th have been included with the trial transcript as a part of the Appendix in this case. 27 made a second motion for a trial order of dismissal after all the evidence was presented by both sides, and the court once again reserved decision on this application. (A.624-626). This application occurred just prior to the defense summation. After the verdict was returned in this case, defense counsel filed a CPL Section 330.30(1) motion to set aside the verdict and renewed a request for a trial order of dismissal while asking for a reversal of the conviction based upon the absence of evidence produced at the trial. (A.757-771). This legal motion was filed on November 19, 2009 and made returnable for December 1, 2009. On October 30, 2009, at a scheduled sentencing appearance prior to the filing of the written motions described above, Judge Carter became aware that he was familiar with a relative of the deceased in this case.2 In a somewhat bizarre turn of events, the trial judge elected to recuse himself from the case despite the fact that trial order of dismissal arguments had been entertained from both parties. Judge Carter noted that the defense had reserved all their rights regarding the nature and quality of the evidence, and also indicated uncertainty about a request for a mistrial based upon the fact that the judge who tried 28 the case had not decided an outstanding motion. (A.751-756). As indicated previously, the trial court had indicated twice on the record it would “reserve decision” on this issue after entertaining argument from both sides of the trial order of dismissal application pursuant to CPL Section 290.10(1). (A.536, 626). Rather than deciding the motion which had been made after the People’s case and subsequently after the presentation of all the evidence, Judge Carter refused to grant an application for a mistrial after the trial court elected to recuse itself from all proceedings, and asserted he needed to review the Judiciary Law or perhaps the issue could be reviewed in a motion to set aside the verdict. (See transcript from October 30, 2009 - A.751-756). On December 23, 2009, the Hon. William Donnino issued an order stating that based on Judge Carter’s recusal order to December 3, 2009, the matter would be re-assigned to the Hon. Daniel Palmieri. Thereafter, the matter was transferred to a substitute judge who had not presided over or heard the argument relating to the trial order of dismissal at the trial. The replacement judge, in resolving the pending written motion to set aside the verdict dated November 19, 2009, denied the trial order of dismissal by failing to set aside the verdict pursuant to CPL Section 330.30(1) and also denied a mistrial request pursuant to Judiciary Law Section 21 based on the trial court’s recusal. (A.4-16). On March 18, 2010, trial counsel filed a motion to reargue the mistrial ruling with regard 29 to the trial judge’s recusal, renewed for a fourth time an application for a trial order of dismissal, and renewed the application to set aside the verdict. The motion to reargue these issues was thereafter denied. In Judge Palmieri’s decision denying the motion to reargue dated April 12, 2010, the court indicated he previously entertained a motion to set aside the verdict pursuant to Section 330.30(1) of the Criminal Procedure Law and a trial order of dismissal motion pursuant to Section 290.10(1) of the Criminal Procedure Law. (A.12). There is no question that the replacement judge entertained a legal application which had been litigated before the trial court, thereby committing error by not granting a mistrial. Verdict and Sentence The appellant was convicted of one count of Murder in the Second Degree and two counts of Criminal Possession of a Weapon in the Second Degree. (A.744-747). He was sentenced to an indeterminate term of twenty years to life imprisonment for his homicide conviction, and determinate terms of ten years imprisonment concurrently with five years post release supervision for each of his convictions for Criminal Possession of a Weapon in the Second Degree. (A.789-807). 30 POINT I IT WAS ERROR AND A VIOLATION OF JUDICIARY LAW SECTION 21 FOR A SUBSTITUTE JUDGE TO ADJUDICATE AND DECIDE A TRIAL ORDER OF DISMISSAL MOTION WHICH HAD BEEN ARGUED AND LITIGATED BEFORE THE ORIGINAL TRIAL COURT JUDGE WHO SUBSEQUENTLY RECUSED HIMSELF FROM THE LITIGATION. A. Judiciary Law Section 21 and the Applicable Law Judiciary Law Section 21 specifically states: A judge other than a judge of the court of appeals, or of the appellate division of the supreme court, shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge. This Court has recognized the application of Judiciary Law Section 21 in the context of a trial circumstance in Smith v. State of New York, 214 N.Y.140 (1915). In Smith, a negligence trial was conducted before a three member panel of the Board of Claims which was a precursor of the present day Court of Claims. After the trial, but prior to the issuance of a decision, one of the three commissioners resigned and a new commissioner was appointed in his place. The successor commissioner participated in the decision despite not having heard the witnesses. The Court of Appeals indicated that the Board would follow the practice of the New York State Supreme Court and that a litigant has the right to have his case determined by the same judge who heard the testimony; accordingly, a Judiciary Law violation had 31 occurred and warranted a new trial. The Appellate Division has also recognized that when a Judiciary Law Section 21 violation occurs in a trial context, the proper remedy is to order a new trial. In the Third and Fourth Departments, both courts have recognized that a new trial is the appropriate remedy. In Evans v. State of New York, 29 A.D.2d 611 (3d Dept. 1967), a judgment was entered in the Court of Claims following trial in an appropriation case. Both sides appealed the trial court’s decision and both sides agreed that the trial court made an error in its valuation approach. The appellate court reversed the judgment of the trial court, but stated that “[t]he Trial Judge having died during the pendency of this appeal, a new trial will be required unless the parties stipulate that a new decision upon the record previously made may be rendered by another Judge.” It is noteworthy that the appellate division never ordered that the new judge decide the case on the record previously made. In the instant case, the recusal of the trial judge makes that judge “dead” to this case. The assignment of a new trial judge, in the absence of a stipulation, mandates a new trial. Evans v. State of New York, 29 A.D.2d 611 (3d Dept. 1967). See also, Matter of Connelly-Logal v. West, 272 A.D.2d 920 (4th Dept. 2000) (Article 78 non-jury trial commenced before one Supreme Court justice and concluded before another constituted a Judiciary Law Section 21 violation and warranted a new trial). 32 In the Appellate Division decision regarding this appeal, the court rationalized the failure to overturn the conviction by asserting that the decision of Judge Palmieri involved purely a legal decision where all discussions had been recorded in the minutes, and the successor court was not called upon to weigh conflicting testimony or assess credibility. With all due respect, this is not the standard or criteria for determining whether a Section 21 Judiciary Law violation has occurred. In fact, the very language of the statute, as well as the relevant case law, confirms the fact that a violation occurs if the particular motion has been argued or litigated before the first judge. If the initial judge has entertained argument or litigated a particular motion, regardless of whether or not it is a purely legal one or a motion which must analyze facts to legal elements, the statute is violated if a successor judge addresses the issue. Even the case law referred to by the District Attorney, Gayle v. Port Authority of New York and New Jersey, 6 A.D.3d 181 (1st Dept. 2004), is a decision which indicates that a post-trial motion on a legal issue may be resolved by a replacement judge if the perspective of the trial judge was not essential to the proper evaluation of the motion. It is precisely the comments of Judge Carter in evaluating the import of the evidence as it impacted on legal sufficiency which, in effect, renders review by another court impermissible. In fact, the perspective of the trial court on the issue of motive and the circumstantial nature of the case precluded review by a replacement 33 judge and required a decision on the trial order of dismissal application by Judge Carter. One of the most fundamental concepts in criminal jurisprudence and litigation generally is the concept that litigants have an absolute right to have a single judge decide a pending motion or application; further, a substituting judge should not adjudicate a pending motion where he was not presiding at the time the particular motion was argued before the court. Matter of Connelly-Logal v. West, 272 A.D.2d 920 (4th Dept. 2000). It has been held that the right to have a decision made by the trial judge who presided over the entire matter is so basic and fundamental that it is not waived by the failure of counsel to object at the time of trial. Michel v. Michel, 31 A.D.2d 313 (4th Dept. 1969). In the Michel case, the failure of the respondent in a family court proceeding to object to a second family court judge making a decision after the case had originally been heard by a first family court judge did not amount to waiver which precluded raising this question on appeal. More importantly, violation of the statute prohibiting a judge from deciding or taking part in the decision of a question which was argued orally or involved the taking of testimony when he was not present is so fundamental that it cannot be waived. People v. Cameron, 194 A.D.2d 438 (1st Dept. 1993) (emphasis added). The Cameron court noted that the rule of Judiciary Law Section 21 applies not only to oral 34 argument or motions but also to the taking of testimony. The essence of the rule is that there is no basis for permitting a substitute judge to adjudicate a ruling or motion where the substitute judge was not present and presiding over the oral argument or motion. Another example in the application of the rule is where a trial court was determined to lack authority to render a decision on a motion to review and reverse a referee’s discovery order where the justice rendering the decision did not preside at oral argument. State v. General Elec. Co., 215 A.D.2d 928 (3rd Dept. 1995). The Fourth Department has also concluded that it was error for a substitute judge to decide a coram nobus writ where the original Niagara County Court Judge had previously conducted a hearing. People v. Hopper, 22 A.D.2d 1006 (4th Dept. 1964). In Clover-East Associates v. Bachler, 23 A.D.2d 620 (4th Dept. 1965), after oral argument on a motion had been held before one Supreme Court Justice, the motion, without notice to or the consent of the parties, was sent to another justice, who decided the motion without any argument being heard. The appellate court found that the deciding of the motion without sitting at the oral argument to be expressly prohibited by Judiciary Law Section 21 and vacated the order being appealed from at the trial level. In Morris-Imhoppe v. State of New York, 22 Misc.3d 545 (Ct. of Claims, 2008), the court ordered a new trial where a trial court recused himself after presiding over a liability trial involving digital tapes with a complete trial transcript. The 35 successor judge ruled that Judiciary Law Section 21 barred him from ruling on the prior proceedings absent a stipulation from both sides and a trial de novo must be ordered. This fundamental concept must be distinguished from those cases which permit the substitution of a trial judge due to the sudden incapacity of the original trial judge, provided there are no outstanding undecided motions or applications previously heard by the original judge. People v. Thompson, 222 A.D.2d 156 (2nd Dept. 1996). In Thompson, the court held that in the absence of demonstrable prejudice, the substitution of an incapacitated trial judge in a criminal jury trial, even after the presentation of evidence has begun, by a judge who has reviewed and become thoroughly familiar with the trial record and who adheres to the rulings of the original judge is constitutionally permissible. However, the Thompson court correctly noted the distinction between the invocation of Judiciary Law Section 21 and a circumstance which did not warrant the application of the provision. Judiciary Law Section 21 provides that a nisi prius judge shall not decide or take part in the decision on a question argued orally when he or she was not present. The prohibition has been applied in criminal, as well as civil matters, where the case is tried to a judge and the substituted judge is called upon to evaluate testimony not taken in his or her presence. . . However, Judiciary Law Section 21 simply is not relevant to this case inasmuch as the replacement judge was never called upon to decide any motion made prior to his substitution. (Emphasis added). Thompson at 160. 36 In Thompson, the trial judge underwent emergency surgery and was unavailable for two months just prior to the conclusion of the People’s case. The original judge had ruled on all motions made during the period that he presided over the trial proceedings. The Second Department approved the substitution of Justice Fisher where he had the opportunity to read the entire trial transcript prior to the recommencement of trial. There were no pending motions at the time of the substitution and a trial order of dismissal had, of course, not yet been litigated by the defense counsel. This court permitted the substitution and declared there was no Judiciary Law violation because the substituting judge was not requested to determine a pending motion or application which had previously been argued and litigated before Judge Clabby. See also, People v. Thomas, 45 A.D.3d 483 (1st Dept. 2007). This Court, in Thompson, affirmed the decision and indicated there is no constitutional right for a jury trial before the same judge from start to finish. Further, if the parameters of Rule 25(A) of the Federal Rules of Criminal Procedure are followed (disability of trial court, a substitute judge from the same court and familiarity with the record), there is no inherent impediment to the substitution of a judge. However, the court noted that a jury trial judge generally does not determine issues of guilt or innocence; therefore, the substitution in Thompson was appropriate as there was no undue prejudice shown by the defendant. People v. Thompson, 90 37 NY2d 615 (1997). The distinction in this case from Thompson is the fact that the substitute judge made findings on factual issues which contradicted the statements of the trial judge during the argument involving the trial order of dismissal. The Judiciary Law is violated if the substitute judge renders a decision on a motion which was orally argued and litigated before the original trial judge. It is simply impermissible and a violation of the statute to permit a substituting judge to adjudicate a motion which was argued before the original judge and where the original argument was not heard by the substituting judge. This circumstance is precisely the scenario in this case. Further, the adjudication of a trial order of dismissal is, in fact, a circumstance where a trial court is reviewing the factual evidence to ascertain whether the People have established the legal elements of the crime in the particular case. Judge Carter expressed serious reservations about whether or not the District Attorney had established a motive prior to the shooting and expressed concern about the DNA findings as well as the overall circumstantial nature of the case. The appellant was entitled to have this judge rule on the application. Further, the appellant was prejudiced by the fact that Judge Palmieri read the same record yet concluded that the defendant had heard those rumors (about Nicki Gray having sex with the victim) beforehand (i.e., the date of the shooting). Judge Palmieri recited the testimony of 38 Ms. Gray about the rumors in the neighborhood involving sexual relations and the fact that she lied to the defendant about the rumors. He also referenced the “dirty looks” between the defendant and the victim. On the other hand, Judge Carter had indicated during the trial order of dismissal argument at the end of the People’s case that the issue of motive had not been established as Ms. Gray’s testimony did not establish pre-shooting knowledge. The trial court noted that the sexual motive issue was not supported by direct evidence but had become a credibility determination. (A.534-535). The trial court went further and proceeded to analyze the problem caused by the DNA findings and noted the circumstantial nature of the proof. Clearly, the trial judge had a far different view of the People’s case than the summary of the facts recited by Judge Palmieri in his written decision on the CPL Section 330.30(1) motion. For this reason, the defendant was prejudiced by having a substitute judge review identical facts, yet contradict the findings of the trial court with regard to the trial order of dismissal argument. 39 B. The Trial Order of Dismissal Motion was Orally Argued Before the Original Trial Judge. On September 21, 2009, at pages 531-536 of the appendix, it is obvious that defense counsel is making a motion for a trial order of dismissal and arguing, on the merits, the reasons why the People have not made out a prima facie case on all these criminal charges. Initially, he argues that the statements heard by Ms. Nelson are ambiguous and provide no context in relation to the homicide in this case. (A.531- 532). Thereafter, he argued that the other evidence was peripheral and did not have any probative force on the issue of the homicide. The Assistant District Attorney, while acknowledging that his case was essentially circumstantial, counters that the appellant was near the location of the home, heard the phone call between Nikki Gray and the deceased, made the quasi- inculpatory statement to Ms. Nelson, and argued that the allegations of rumors involving sexual relations between the deceased and Ms. Gray furnished a motive. (A.532-536). The trial court engaged in some colloquy regarding whether the evidence demonstrated the appellant was aware of the sexual allegations prior to or after the homicide and how such evidence interacted with the question of motive. (A. 534-535). The trial court opined, after argument, that there is no direct evidence that the appellant knew about the sex allegations prior to the homicide. (A.534). The 40 court and the prosecution proceed to discuss the absence of DNA evidence and the significance of any such evidence. (A.535-536). A review of the record reveals that the trial court and both attorneys engaged in an extensive oral argument regarding the trial order of dismissal issue which ultimately led the court to reserve decision on the application. (A.536). At the end of the defense’s case, a motion for a trial order of dismissal was renewed by the counsel for the defendant under the reasonable doubt standard. (A.624-626). The record indicates that the trial court reserved decision on the second trial order of dismissal application on September 22, 2009 just prior to summations. However, the original trial court, having heard the arguments on both sides, could have decided this issue before recusing himself on October 30, 2009, more than five weeks after the motion was made and almost one month after the jury verdict in this case. Alternatively, the trial court should have declared a mistrial once the conflict arose and the trial order of dismissal motion continued to be pending. In fact, the minutes from the October 30th sentence adjournment proceeding indicate the trial court was unsure about whether a mistrial application should have been viewed favorably based on the pending motions before the trial court. (A.752-755). On November 19, 2009, defense counsel filed a written motion returnable before Judge Carter requesting a ruling on the pending trial order of dismissal 41 application and to set aside the jury verdict in the context of a CPL Section 330.30(1) motion. Additionally, the motion specifically requested that if the court recuses itself, a mistrial must be granted. On December 23, 2009, Judge Donnino filed an order indicating that, based on Supreme Court Judge Carter’s order recusing himself on December 3, 2009, the case was re-assigned to the Hon. Daniel Palmieri. In the written decision to the November 19th motion for a trial order of dismissal and a 330.30(1) motion to set aside the verdict, Judge Palmieri asserted that Judge Carter, the trial judge, learned of a conflict of interest sometime after the verdict by knowing an unreferenced member of the victim’s family. In denying the motion to set aside the verdict, Judge Palmieri reviewed the factual issue relating to motive and concluded the People had established a motive in this case which directly contradicted the assertion of Judge Carter at the time he commented on the original trial order of dismissal application. (A.4-16). Judge Palmieri attempted to rationalize his decision by asserting a post-trial motion dealing exclusively with a legal issue may be subject to a substituted judge’s determination. Bonasera v. Town of Islip, 19 A.D.3d 525 (2d Dept. 2005). Unfortunately, the substitute court’s analysis of the Thompson decision and the line of cases in the area is seriously flawed. First, a trial order of dismissal application 42 occurred after the People’s case was presented and after all the evidence had been presented at the trial. It is not purely a post-trial application. Secondly, the focus on the issue is not whether or not the motion is purely a legal one, even though trial orders of dismissal are typically a mixed question of law and fact; rather, the application of Judiciary Law Section 21 is dependent on whether or not the original trial court judge heard argument on the issue. If the original judge entertained oral argument on the issue, another judge is precluded from addressing the same question by operation of Section 21 of the Judiciary Law, and the fundamental concept that a litigant is entitled to have a particular judge decide an issue which was presented exclusively to that judge. The distinguishing factor in this case from Thompson was that there were no outstanding motions before Judge Fisher at the time he replaced Judge Clabby at the original trial. Accordingly, the protection afforded by the Judiciary Law did not apply. In this case, the trial court heard the original argument on the trial order of dismissal application on September 21, 2009, the motion was renewed on September 22, 2009, yet the court did not recuse itself on the record until October 30, 2009. It should also be noted that trial counsel for the appellant made a timely motion for a mistrial once Judge Carter formally indicated he planned to recuse himself. 43 On February 17, 2010, Judge Palmieri issued a written decision denying a motion to set aside the verdict pursuant to CPL Section 330.30 (1) and for a mistrial pursuant to Judiciary Law Section 21 based on the trial court’s recusal. Further, Judge Palmieri, in his decision denying the motion to reargue, specifically asserted that the motion he reviewed was to set aside the verdict and for the issuance of a trial order of dismissal pursuant to Section 280.10(1) of the Criminal Procedure Law. There is no question that he litigated the trial order of dismissal application after Judge Carter had heard legal and factual arguments on the question. The defendant was prejudiced by Judge Palmieri making evidentiary conclusions which differed from the statements of Judge Carter. By reviewing the trial evidence and analyzing the issue of motive, the replacement judge re-litigated the argument originally made before Judge Carter. On March 18, 2010, trial counsel filed a motion to reargue the mistrial ruling with regard to the trial judge’s recusal, renewed once again an application for a trial order of dismissal, and the application to set aside the verdict. The motion to reargue these issues was thereafter denied, with Judge Palmieri acknowledging that he had previously ruled on the trial order of dismissal. It is submitted that once Judge Carter recused himself without ruling on the trial order of dismissal application, the only proper ruling was to grant the appellant a mistrial. Under Section 280.10 of the Criminal Procedure Law, a mistrial could have 44 been declared based on subdivision (3) due to the inability to proceed in conformity with law or based on subdivision (1), due to a legal defect in the proceeding which prejudices the defendant and deprives him of a fair trial. Concerns of inconvenience and burden to the prosecution, occasioned by a retrial which a mistrial declaration may cause, are outweighed by the impairment of the substantial rights of the defendant herein. Trial counsel moved for the proper remedy in a timely fashion and it was error for the substitute judge to deny the request; accordingly, a new trial should be ordered. In this case, there is no question that trial counsel properly preserved and addressed the issue of the failure of Judge Palmieri to grant a mistrial application once Judge Carter had issued an order of recusal, and Judge Palmieri opted to adjudicate the trial order of dismissal motion which had been fully litigated by Judge Carter. It is submitted that it was error for the substitute judge to rule on the motion which had been fully litigated before the trial court. Furthermore, it is specifically requested that the court remedy this defect and order a new trial in this matter. 45 POINT II THE TESTIMONY OF SHAMIQUA NELSON IS LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR HOMICIDE AND WEAPONS POSSESSION IN THIS CASE As this court is aware, legal sufficiency of the evidence to establish the guilt of the defendant requires a review of the facts to determine whether competent evidence established all the required elements of the crime, i.e., whether the People established a prima facie case. It has been asserted that the appellate court must “marshal competent facts most favorable to the People to determine whether, as a matter of law, the jury could logically conclude that the People established its burden of proof.” People v. Danielson, 9 NY3d 342 (2007); People v. Brun, 58 A.D.3d 862 (2nd Dept. 2009). When viewed in the light most favorable to the prosecution, the evidence must prove a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime beyond a reasonable doubt. People v. Acosta, 80 NY2d 665 (1993); People v. Diaz, 201 A.D.2d 580 (2nd Dept. 1994). A review of the factual evidence reveals that there is no eyewitness testimony, physical evidence, forensic evidence, or statements to law enforcement personnel that establishes a causal link between the appellant and the crime. In fact, the DNA results from the shell casings recovered from the crime scene match an individual involved in a stolen car case in Elmont, New York and specifically do not match the DNA 46 retrieved from a water bottle used by the appellant which was secured from him after a vehicular stop performed by law enforcement. The police engaged in this surreptitious venture in order to secure DNA from the appellant, yet subsequently learned that his DNA from the water bottle did not match the DNA received from the bullet shell casings; furthermore, the DNA from the bullet shell casings matched an unknown individual whose DNA appeared on a screwdriver involved in an auto theft case. It should also be noted that law enforcement never bothered to compare the DNA results with any of the suspects outlined in the detective’s homicide notebook. For example, a friend of the deceased provided the detective with information that Dante Carter, a known member of the “Bloods” with a July, 2007 arrest for weapons possession, had personally planned to rob Kareem Sapp. At the trial, despite the fact that defense counsel had jail records indicating Mr. Carter was 5'11" tall, Detective Re initially testified he thought Mr. Carter was 5'5" tall and later asserted he thought Dante Carter was 5'8" or 5'10" tall. (A.482). In a ludicrous aspect of the detective’s testimony when confronted with the height of Mr. Carter in the jail records, he attempted to suggest that this individual may not be the same person. (A.483). Ultimately, the detective acknowledged that he never spoke to this suspect, tried to find the suspect, pursued any additional information relating to the suspect, or 47 conducted any investigation to substantiate whether a known “Bloods” member had planned to rob the deceased. The failure to compare the DNA results with Dante Carter, or any of the other suspects in the homicide notebook, is simply incomprehensible. The only evidence which links the appellant to the crime is the unreliable and inconsistent testimony of Shamiqua Nelson. How do you evaluate the term legal sufficiency with an individual who fabricates a person at a crime scene? The trial record is abundantly clear that Ms. Nelson asserted a female was present at the crime scene screaming “he did it” and pointing at the defendant’s residence; however, none of these observations are corroborated by the three witnesses present at the crime scene (Gray, Moore and Delacruz), as well as the responding police officers. Ms. Nelson had a dislike for the appellant due to his socializing with her baby’s father and purportedly concocted a person at the crime scene of the shooting. Ms. Nelson cannot recall any of the individuals inside the Vereen home where she resided at the time the appellant is purportedly making damaging admissions. Additionally, she could not recall any statement made by any other individual at the Vereen home. She continually equivocated on the certainty of her recollection at trial. She required her recollection to be continually refreshed by prior grand jury testimony and later asserted to defense counsel at trial: 48 You’re confusing me. I can’t even remember anything right now, besides what you just said to me. I’m actually confused right now. Seriously. (A.302). Her instability as a witness was reflected by the fact that the trial court admonished her to answer the specific questions presented; furthermore, when the prosecutor attempted to rehabilitate her testimony regarding whether she actually heard the appellant’s words or believed she heard them, she testified as follows: Q. You heard him say that. It’s not a belief A. No, it’s not a belief Q. So that we’re clear. A. But I took Ritalin, so who knows. (A.299) She reiterated that the appellant was constantly stuttering when he made the damaging admissions, yet no law enforcement or civilian witness ever indicated that appellant stuttered in any manner. Ms. Nelson’s version of events inside the Vereen home at the time the appellant made admissions were contradicted by four defense witnesses. These individuals (Gregory Hampton, Brandon Vereen, Cheryl Tate and Chantel Vereen) directly contradict Nelson’s testimony that the appellant made stuttering admissions (at 796 North Gate Drive) about his “manhood being tested” or “putting the gun in the woods” on December 18, 2007. These witnesses are individuals who Ms. Nelson was living with at the time of the shooting, and are also 49 relatives of Ms. Nelson (i.e., baby’s grandmother, aunt and uncle). Ms. Nelson is incredible as a matter of law and cannot furnish a basis for legal sufficiency. People v. Carthens, 171 A.D.2d 387 (1st Dept. 1991); People v. Garcia, 237 A.D.2d 42 (1st Dept. 1998). All parties are aware that the standard for reviewing legal sufficiency is whether the evidence, viewed in the light most favorable to the People, could lead any rational trier of fact to conclude that the essential elements of the crime were established beyond a reasonable doubt. People v. Contes, 60 N.Y.2d 620 (1983). The present case is not a situation where reasonable inferences can be drawn from a prosecution witness; rather, this is a circumstance where a prosecution witness has created a fictitious character at a crime scene and essentially committed perjury in this regard. Her testimonial style was unstable and markedly evasive in nature without any foundation or context surrounding the events regarding certain alleged admissions by the appellant. Further, this is not merely a circumstance where a single witness is viewed as sufficient evidence to support a conviction. See People v. Arroyo, 54 N.Y.2d 567 (1982). In such a case, there is an inherent view that such a witness is credible; accordingly, reasonable inferences can be drawn from such testimony. In this case, the particular witness has fabricated a person at a crime scene, has a motive to harm the appellant, and described the events pertaining to his admissions under highly 50 suspect and questionable circumstances. Such a witness simply should not be the cornerstone for a finding of legal sufficiency. Another controversial aspect of this case is primarily due to the fact that a jaded detective sought to characterize as a lie any aspect of the appellant’s version of events. Ultimately, he also portrayed to the jury that, once confronted with inconsistencies, the appellant was moments away from confessing to the crime just prior to an attorney’s phone call four hours after the commencement of the interrogation. Despite the fact that the appellant had been interviewed on December 18, 2007 by two detectives and essentially reiterated the same version of events that he would relate to Detective Re on July 23, 2008, Detective Re sought to inappropriately characterize the appellant’s version of events as evasive and ever changing. At best, his ability to cast doubt on appellant’s version of events may result in the determination that the defendant was either mistaken or not candid about certain details, but it furnished no probative force as to whether or not he fired the gun that killed Kareem Sapp. The four hour interrogation which occurred on July 23rd focused on an array of issues ranging from whether the appellant was aware that the deceased and Nikki Gray had sexual relations, whether he and his friends actually arrived at Jamaica Avenue as opposed to traveling towards Jamaica Avenue, text messages between Ms. Gray 51 and the appellant, the geographical route taken by Mr. Hampton in Uniondale prior to the shooting and the circumstances of his cell phone usage. Despite all of Detective Re’s allegations relating to these topics, none of these issues furnished any probative information pertaining to the shooting. The detective constantly attempted to categorize appellant’s interview in a manner which suggested that he was being evasive with an alibi which was flimsy at best. As noted, the detective, during his trial testimony, was best described by the trial judge at sidebar as an individual who doesn’t answer questions directly and is constantly embellishing. (A.529-530). Accordingly, the entire prosecution case in terms of legal sufficiency rested on the testimony of one extremely dubious witness and a detective who attacked the appellant’s statement in an overzealous manner while completely failing to conduct an investigation pertaining to other suspects. For these reasons, the singular witness was incredible as a matter of law and the evidence presented was legally insufficient. 52 Conclusion It is respectfully requested that this Court order a new trial based upon the violation of Judiciary Law Section 21 or, alternatively, this Court should reverse the conviction based upon a failure of the People to present legally sufficient evidence to support the convictions in this case. __________________________ JOSEPH A. GENTILE FRANKIE & GENTILE, P.C. Attorneys for Defendant-Appellant 1527 Franklin Avenue Suite 104 Mineola, NY 11501