The People, Respondent,v.Travis Augustine, Appellant.

Brief

N.Y.April 30, 2013

______________________________________________________________________________ STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Repsondent, -against- TRAVIS AUGUSTINE, Appellant. ______________________________________________________________________________ APPELLANT’S BRIEF ______________________________________________________________________________ MATTHEW C. HUG, ESQ. Attorney for Appellant Rensselaer Technology Park 105 Jordan Road Troy, New York 12180 Tel: 518-283-3288 Date: September 6, 2012 To be Argued: Matthew C. Hug, Esq. (Time Requested: 20 Minutes) TABLE OF CONTENTS -- BRIEF Table of Authority .......................................... i Preliminary Statement ............................... 1 Questions Presented ............................... 2 Statement of Facts .......................................... 3 Argument .................................................... 16 Point I: Appellant’s indelible right to counsel was violated when police interrogated him on two occasions while he was incarcerated on charges for which he was represented by counsel and the lower court’s rejection of this claim constitutes reversible error ........... 16 Point II: Appellant’s conviction for aggravated cruelty to animals was not supported by legally sufficient evidence and must be reversed .......................................... 30 Point III: The lower court erred in failing to suppress appellant’s statement to police on July 27, 2008 insofar as it was conceded that appellant was in custody and not Mirandized .................................................... 33 Point IV: The lower court erred in rejecting appellant’s argument that he was denied his constitutional right to counsel when the trial court refused his pretrial request for the assignment of new counsel without first providing him with an opportunity to be heard .............................................................. 36 Conclusion .................................................... 39 TABLE OF AUTHORITY Caselaw Gideon v. Wainwright, 372 US 335 (1963) ..................... 37 People v. Bing, 76 NY2d 331 (1990) ..................... 16, 17 People v. Burdo, 91 NY2d 146 (1997) ..................... 17 People v. Crimmins, 36 NY2d 230 (1975) ..................... 28 People v. Dean, 56 AD2d 242 (4 Dept 1977) ........... 20 People v. Degiorgio, 36 AD3d 1007 (3 Dept. 2007) ........... 31 People v. Droz, 39 NY2d 457 (1976) ..................... 37 People v. Grice, 100 NY2d 318 (2003) ..................... 22 People v. Harris, 77 NY2d 434 (1993) ..................... 16 People v. Hobson, 39 NY2d 479 (1976) ..................... 27 People v. Krum, 61 NY2d 187 (1984) ..................... 33 People v. Linares, 2 NY3d 507 (2004) ..................... 37 People v. Medina, 44 NY2d 199 (1978) ..................... 37 People v. Pinzon, 44 NY2d 458 (1978) ..................... 23, 26 People v. Pope, 241 AD2d 756 (3 Dept 1997) ........... 17 People v. Robles, 72 NY2d 689 (1988) ..................... 23 People v. Rogers, 48 NY2d 167 (1979) ..................... 17 People v. Settles, 46 NY2d 154 (1978) ..................... 16 People v. Sides, 75 NY2d 822 (1990) ..................... 37 People v. West, 81 NY2d 370 (1993) ..................... 16 Ungar v. Saralift, 367 US 575 (1963) ..................... 36 Constitutional Provisions U.S. Const. Amends. VI, XIV ..................... 37 NY Const. Art. I, § 6 ............................... 37 Statutes Ag. & Mkts L. § 353-a(1) ...................... 30 Rules and Regulations NY Court Rules § 200.26(b) ..................... 18 Legislative History 1999 McKinney’s Session Laws of NY at 1468 .......................................... 30-31 1999 McKinney’s Session Laws of NY at 1584-1585 ............................... 30-31 PRELIMINARY STATEMENT By permission of the Honorable Thomas Jones, Associate Judge of the Court of Appeals, granted June 1, 2012, appeal is taken from an order of the Appellate Division, Third Department entered November 10, 2011. (A 9), See People v. Lewie, 67 AD3d 1056 (3rd Dept. 2009), lv granted, 14 NY3d 889 (May 28, 2010) (A 2-8). Said order affirmed a judgment of conviction rendered May 1, 2009, by the County Court, Greene County (Pulver, J., at trial and sentencing). (A 35-46; R 178-189). Travis Augustine was convicted after trial of the crimes of murder in the second degree in violation of Penal Law § 125.25(1); aggravated cruelty to animals in violation of Agriculture and Markets Law § 353-a; criminal possession of stolen property in the fourth degree in violation of Penal Law § 165.45(5); and criminal possession of stolen property in the fourth degree in violation of Penal Law § 165.45(2). Following trial, appellant was sentenced to a cumulative, aggregate sentence of 29 years to life in prison. On appeal to the Appellate Division, Third Department, appellant’s conviction was affirmed. 1 QUESTION PRESENTED I. WAS APPELLANT’S INDELIBLE RIGHT TO COUNSEL VIOLATED WHEN MEMBERS OF THE NEW YORK STATE POLICE INTERROGATED HIM MULTIPLE TIMES WHILE HE WAS INCARCERATED ON A CHARGE FOR WHICH HE WAS REPRESENTED BY COUNSEL? II. WAS APPELLANT’S CONVICTION FOR AGGRAVATED CRUELTY TO ANIMALS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE? III. DID THE LOWER COURT ERR BY FAILING TO SUPPRESS APPELLANT’S STATEMENT TO POLICE ON JULY 27, 2008 ON ACCOUNT OF THE ADMITTED FAILURE TO PROVIDE HIM WITH HIS MIRANDA WARNINGS? IV. DID THE LOWER COURT ERR IN REJECTING APPELLANT’S CLAIM THAT HE WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO COUNSEL WHEN THE TRIAL COURT REFUSED HI PRE-TRIAL REQUEST FOR NEW COUNSEL WITHOUT FIRST PROVIDING HIM WITH AN OPPORTUNITY TO BE HEARD? 2 INTRODUCTION Appellant was convicted after trial of murder in the second degree, aggravated cruelty to animals and criminal possession of stolen property (two counts) based upon allegations that appellant shot and killed Martha Conners (his friend and scrap metal collecting partner) and her dog, buried them both on the victim’s isolated property, and took her credit card and cellular telephone. The case against appellant was entirely circumstantial and was, in large measure, based on statements appellant made during two police interrogations in violation of his constitutional right to counsel. The Disappearance of Martha Conners In 2008, Martha Conners lived with her dog and son, Matthew Conners, in a trailer unserviced by any utilities on an expansive and isolated piece of land in Greene County. (A 172, 178; T 276, 284)1. Conners made her living by collecting and selling scrap metal to local scrap yards. (A 170-171, 176; T 274-275, 281). During the spring of 2008 she befriended appellant and within a short period of time, he was residing and working with Conners. (A 177-178; T 283-284). Owing to his size and strength, appellant proved a valuable asset to Conners’ scrapping operation; and Conners’ son, Matthew was cut-out. After being cut out, Matthew moved with his girlfriend and later wife, Josephine Conners, to the Sandman Motel 3 1 Citations to page numbers preceded by “A” refer to the volume entitled “Appellant’s Appendix”; parallel citation preceded by “R” refers to the volume entitled “Record on Appeal;” citation preceded by “H” refer to the volume of transcripts of the Huntley Hearing; and citation preceded by “T” refer to the multi-volume, consecutively paginated set of trial transcripts. located in the Town of Catskill. On or around July 4, 2008, Matthew Conners abruptly decided to move to Long Island with his wife, Josephine. This also happened to be the last time Martha Conners was seen. Matthew Conners returned, by bus, to the Town of Catskill on July 7, 2008. (A 179; T 285). He went to Martha’s property along with Benedetto Calavecchia (a scrap yard owner), rummaged through her trailer, removed a rifle and tried to sell it. (A 180-181, 193, 204; T 287-288, 324, 358). He also took and sold scrap metal from his mother’s property and returned to Long Island. (A202-203; T 356-357). It was not until he was back on Long Island that Matthew began reporting that his mother was missing to her ex-boyfriends. (A220-226; T 408-416). Claiming he lacked the finances to return to the Town of Catskill, Matthew did nothing (aside from calling his mother’s cellular phone) to follow-up on his mother’s whereabouts. (A191-192, A229-230; T 317-318, 420-421). Appellant’s Arrest On July 18, 2008, appellant was arrested, based upon two open bench warrants, in the Town of Sharon Springs, Schoharie County following a motor vehicle stop. (A 38-39, 50-52; R 181-182, 213-215). Appellant was taken to the Town of Cairo Town Court to be arraigned on a violation of probation petition before Judge Baldwin. (A 154; T 218). Appellant was familiar to the court as had been sentenced earlier by the same judge to misdemeanor probation. (A 144; H 164). 4 Before the judge remanded him to the county jail, it assigned the Greene County Public Defender to represent him with respect to the violation of probation petition. (A 48; R 211). The assignment of counsel was memorialized by the court in an arraignment memorandum that was generated by the court contemporaneously with the arraignment. (A 48; R 211). Matthew Conners Returns and Appellant is Interrogated On July 26, 2008 Matthew Conners returned to the Town of Catskill with his wife. (A 230; R 421). The following morning, the couple went to Martha’s property. (A 231-232; R 422-423). Hours later, they were seen walking along the shoulder of a county highway covered in mud and dirt. (A 205-206, 216-217; T 373-374, 388-389). It was not until late in the evening of July 27, 2008 (after Matthew had been at his mother’s property all day) that he called the police to report her missing. (A 162; T 240). Shockingly, when he reported to police that his mother was missing, Matthew misstated the truth as to where she lived. (A 163; T 241). To that end, he told police that his mother lived at the Sandman Motel (his former residence) and failed to mention the fact that she lived on the isolated property he had been digging around on all day. (A 163; T 241). The New York State Police wasted hours searching for Martha at the Sandman Motel before discovering that she never lived there. (A 163-164; T 241-242). By the time Matthew came clean with 5 the police and informed them of his mother’s actual residence, it was far too dark for them to see anything. (A167-168; T 256-257). The following day, July 28, 2008, Matthew went to the Greene County Jail and met with appellant. (A 207; T 375). After meeting with appellant, Matthew returned to his mother’s property with his wife and father-in-law. (A 209; T 377). While walking around the property, Matthew found a grave marker and immediately set about unearthing it. (A 209-210; T 377-378). The grave-marker was a crude make-shift wooden cross scrawled with words such as “doggy heaven.” (A 293; T 830). Juliann Barth, Josephine Conner’s mother, later identified the handwriting as belonging to Josephine. (A 293; T 830). Appellant’s father-in-law, Edward Capolupo, assisted him with digging and found a dog. (A 210; T 378). Pristine, green leaves were found under the dog and it was clear that the grave was fresh. (A 218-219; T 390-391). As a result of their discovery, they kept digging and ultimately found a human hand wrapped in a yellow blanket and called the police. When the body was found, Matt was heard to say that it wouldn’t look good for him being the person that discovered the body. (A 214; T 382). Before the police arrived, Matthew and Josephine rummaged through Martha’s trailer and Matthew was heard screaming in frustration. That evening, police uncovered the grave of Martha Conners. On July 27th and July 29th, members of the New York State Police interrogated and questioned appellant in the Greene County Jail in the absence of 6 counsel that had been assigned at arraignment to represent him on the violation of probation petition. During these interrogations, appellant denied that he was responsible for Martha’s disappearance or death though some of the facts in his story differed. The Huntley Hearing Prior to trial, the defense sought to suppress statements appellant made to police on July 27 and July 29 because, they were obtained in violation of his constitutional right to counsel. Appellant asserted that his indelible right to counsel attached when he was assigned counsel and prohibited police from questioning him while he was in custody. The prosecution argued that although appellant was in custody, he was not represented by counsel because the public defender never met with him while he was in jail and that the assignment of counsel by the town judge was not really an assignment of counsel. The key piece of evidence was the arraignment memorandum that was written by the town judge contemporaneously with the arraignment. (A 48; R 211). This memorandum showed that appellant requested counsel and was assigned the Greene County Public Defender before he was remanded to the Greene County Jail, the location of his two police interrogations. (A 48; R 211). To rebut this unequivocal evidence that appellant was represented by counsel, the prosecution called Town of Cairo Town Judge Baldwin as a witness at the hearing. Baldwin testified that he knew at the time of the arraignment that appellant had been 7 previously represented by the Greene County Public Defender. (A 144; H 164). He also acknowledged that when appellant appeared on the second appearance on the violation of probation petition he was represented by the Greene County Public Defender. (A 42, 143; R 185; H 163). Despite the fact that the documentary evidence spoke for itself, the prosecution was permitted to inquire of the unspoken, secret intentions Judge Baldwin possessed that evening when he wrote down that he had assigned counsel. (A 137; H 157). Judge Baldwin claimed that when he assigned the Greene County Public Defender to represent appellant, he didn’t really assign counsel but, rather quietly believed that it was an instruction for the Public Defender’s office to conduct an “intake” to determine whether appellant was qualified to be represented by them. (A 137; H 157). While the trial court allowed the prosecution to engage in this inquisition into parol evidence that contradicted the document itself, it concomitantly appellant from asking Judge Baldwin whether he did, in fact, assign counsel. (A 145-146; H 165-166). At the hearing, the prosecution also took the alternate position that appellant’s indelible right to counsel did not attach because, the public defender never visited him in jail and hence there was no entry of counsel. Portions of the jail’s log book were entered into evidence and showed that no one from the public defender’s office signed in to see appellant. According to the prosecution, this established that appellant was never contacted by the Public Defender because staff 8 at the jail was so thin that attorneys were not permitted to contact their clients by telephone. (A 4). Following the hearing, the trial court found that the unequivocal written assignment of counsel was not an actual assignment of counsel but, rather was a “perfunctory referral” and did not lead to the creation of an attorney-client relationship. (A 35-46; R 178-189). Based upon this finding, the court denied appellant’s motion to suppress the statements. (A 35-46; R 178-189). Trial At trial, the prosecution used appellant’s statements to incriminate him because, his story changed in his various statements to the police. It was a critical part of the prosecution’s entirely circumstantial case. Based upon very little evidence, the prosecution theorized that sometime between July 2, 2008 and July 6, 2008, appellant shot and killed Martha Conners and her dog, buried them both on her property, stole her truck, credit card and cell phone and went to the City of Rome, New York. The prosecution had great difficulty in establishing when Martha Conners died. Matthew claimed to have spoken to Martha on July 7, 2008. (A 179; T 285). William Kenneally, the corporate secretary for the Price Chopper supermarket chain, testified that the last day that Martha punched into work was on July 3, 2008. (A 199; T 345). Martha’s friend, Allison Walker-Baker testified that she travelled from the Bronx to visit Martha for the July 4th holiday and saw her on 9 July 2nd but, that Martha left her to go scrapping. (A 233-238; T 435, 443-447). During a police investigation, State Police Investigator Lischak learned that Martha had been seen driving with her ex-boyfriend, Jeffrey Barra as late as July 25, 2008. (A 168; T 257). Another prosecution witness testified that she was told that Martha had been killed in late-June, before she was missing. (A 264-268; T 685-689). The prosecution’s forensic evidence was unable to provide any additional clarification. To that end, Dr. Jeffrey Hubbard, a forensic pathologist, estimated that Martha had been dead for at least a week before she was discovered and could have been dead for several weeks. (A 275; T 756). The lack of any infestation on Martha’s cadaver bothered Dr. Hubbard who testified that her body must have either been immediately buried or wrapped in plastic following her death. (A 276-277; T 757-758). Dr. Ward Stone, a wildlife pathologist also found no evidence of post-mortem infestation and opined that the dog had been buried two to three weeks prior to its discovery. (A 280; T 779). Thus, the evidence offered by the prosecution failed to establish that Martha and her dog were killed at the same time or when either of them were killed. In addition to this lack of clarity in the evidence was the presence of pristine, green leaves that were found between Martha’s body and the dog. Capolupo testified that the leaves “looked like they weren’t there for too long.” (A 219; T 391). He also testified that the gravesite appeared to have been recently dug. (T 212; T 380). The prosecutor’s witnesses were completely unable to explain how 10 leaves could remain in such pristine condition for 23 days while the two corpses decomposed. Since appellant was in Rome, New York and the county jail for the majority of the month of July 2008, this left only Matthew and Josephine Conners -- both of whom were seen walking away from Martha’s property covered in mud only two days before they “discovered” her body beneath a gravemarker that had Josephine’s handwriting on it. (A 205-206, 216-217, 293; T 830). In an effort to add support for its weak circumstantial case, the prosecution also called Franklyn Smith, appellant’s brother and notorious drug-dealer that admitted, among other things, that he stole from his own grandmother. (A 253-254; T 645-646). Smith offered his testimony to avoid his own prosecution on other charges. (A 253-254; T 645-646). Smith offered some of the most incredible and absurd testimony of the trial. First, he testified that appellant called him on July 6, 2008 inquiring as to the best way to dispose of a dead body. (A 247; T 625). Smith claimed that he advised appellant that the best way to dispose of a body was to bury it and then bury a dead dog over the top of it. (A 247; T 625). Smith claimed that he learned this from a friend, whose name he could not remember, that worked for the non-existent, “CSI” Florida. (A 252; T 640). Smith also claimed that appellant admitted to him, over drinks, that he had shot and killed Martha Conners. (A 248; T 628). The prosecution also called Scarlet Geis, who testified that she met appellant in July 2008 and during that time observed 11 appellant use Martha’s debit card and was instructed to give false information about Martha’s whereabouts to people that called her cell phone. (A 255-260; T 651-656). It was against this backdrop that the prosecution used the statements that were obtained in violation of appellant’s indelible right to counsel. To that end, the prosecution’s aim was to show that because appellant changed his story as to his whereabouts, that he was guilty of the crimes charged. The prosecution showed that in his first statement to police, appellant stated that he and Martha travelled to Rome, New York together around July 10, 2008, that she sold him her truck and she pressed on to Niagara, New York without him and that was the last time he saw her. (A 165-166; T 254-255). In his second statement to police (July 29), he stated that he last saw Martha on July 10 in Rome, New York, that she left him with her truck and pressed on to Niagara, New York to visit family. (A 269-274; T 732-737). During the course of this statement, appellant told police that Martha had euthanized her dog on July 6 because, it was ill. (A 269-274; T 732-737). In the third statement to police, that was made in the presence of counsel, appellant stated that he last saw Martha on July 3, 2008 when she dropped him off at a friend’s house for a Fourth of July party. (A 77-78, 80-81; R 240-241, 243-244). He stated that after the Fourth of July weekend he hitched a ride back to Martha’s trailer and stayed there alone for a few days. (A 77-78, 80-81; R 240-241, 12 243-244). While he stayed there, he observed Matthew removing things from the property. (A 81; R 244). When he ran out of food, he decided to take Martha’s truck to Rome, New York so as to avoid local law enforcement that were looking for him on two open bench warrants. (A 80-81; R 243-244). In this statement, appellant recounted Matthew’s disturbing past that included threats to kill Martha, animal torture and an attempt to strike Martha in the head with a propane tank. (A 95-96; R 258-259). Appellant also informed police that Matthew was envious of his relationship with Martha. (A 95-96; R 258-259). He also explained that he had misled police during their earlier interrogations because he was fearful of being charged with stealing her truck and credit card. (A 108-109; R 271-272). In a fourth interview, also in the presence of counsel, appellant accused Matthew of killing Martha stating that “I can’t get the image of her laying there out of my head. I’m not going to condemn another soul. I know what happened. Ballistics will show from the angle that it wasn’t me. I am six foot seven. He is three foot. I have already told you too much. I don’t want to say anymore.” (A 282-289; T 818-825). The prosecution theorized that this was incriminating because police had not revealed Martha’s cause of death. (A 281; T 817). As stated, Juliann Barth, Josephine Conner’s mother, testified for the defense. Barth testified that the handwriting on the cross that was found above Martha’s grave was that of her daughter and that the language used on the cross 13 was the same types of things Josephine was known to say. (A 290-295; T 827-832). The prosecution, who presented the testimony of John Sardone, a forensic document examiner with the Federal Bureau of Investigation was unable to identify the writing as either belonging to appellant or Matthew. (A 261-263; T 661-662). Sardone did not examine Josephine Conner’s handwriting. The likely reason being the fact that the police did not want this aspect of the case to be investigated as was established by Barth, who testified that when she approached the police with this information, they told her to “get it out of her head.” (A 296; T 833). She was also told by State Police Investigator Aguiar not to testify for the defense. (A 297; T 835). Nevertheless, appellant was convicted as charged and sentenced to 29 years to life in state prison. Appeal On appeal appellant argued, inter alia, that the trial court erred in denying his motion to suppress the statements he made to police on July 27th and 29th; that the trial court erred in denying appellant’s motion to suppress his statement to police on July 27th that was obtained without a prophylactic Miranda warning and his conviction for aggravated cruelty to animals was unsupported by legally sufficient evidence. The Appellate Division affirmed appellant’s convictions and rejected the salient arguments currently raised before this Court. (A 2-8). To that end, the 14 lower court held that the evidence that Judge Baldwin assigned counsel was “equivocal” and hence insufficient for appellant to establish that appellant’s indelible right to counsel had attached. (A 3-5). To support this stunning conclusion, the lower court placed the documentary evidence the circumstances surrounding the assignment of counsel and Judge Baldwin’s legal obligation to assign counsel, on equal footing with his subsequent testimony that he secretly intended not to assign counsel (and hence disobey the legal requirement that he do so) and merely intended to alert the Public Defender to perform an intake. (A 3-5). Thus, according to the court, an assignment (even if legally required) is not an assignment if, a town judge later changes his mind as to what he did in testimony in support of the prosecution. The lower court continued, and held that even if counsel had been assigned, appellant’s indelible right to counsel had not attached because the public defender never visited appellant at the county jail. (A 5-6). The court also cited to evidence of on an alleged telephone call that was made by interrogating officers to the District Attorney to determine whether appellant had an attorney prior to the interrogations, to further insulate its decision, ignoring the fact that members of the NYS Police were present in the court room when counsel was assigned. (A 5-6). The court denied the remaining arguments raised on appeal and affirmed appellant’s convictions in all respects. (A 8). 15 ARGUMENT POINT I APPELLANT’S INDELIBLE RIGHT TO COUNSEL WAS VIOLATED WHEN POLICE INTERROGATED APPELLANT ON TWO OCCASIONS WHILE HE WAS INCARCERATED ON CHARGES FOR WHICH HE WAS REPRESENTED BY COUNSEL AND THE LOWER COURT’S REFUSAL TO SUPPRESS THE STATEMENTS CONSTITUTES REVERSIBLE ERROR. There is no question that the lower court’s decision significantly undermines the indelible right to counsel, a right that, heretofore has been regarded as a “cherished principle,” “rooted in this State’s prerevolutionary constitutional law and developed independent of its Federal counterpart.” People v. West, 81 NY2d 370, 373 (1993), quoting People v. Harris, 77 NY2d 434, 439 (1993), quoting People v. Settles, 46 NY2d 154, 160-161 (1978). Worse, it threatens to afford different protection to people that can afford the cost of counsel from those that cannot. The right to counsel provided by the New York State Constitution “is more restrictive than that guaranteed by the Sixth Amendment (and the protections it provides) are far more expansive.” People v. Bing, 76 NY2d 331, 338-339 (1990). These rights are so cherished that the courts of this State demand that they “be accorded the highest degree of respect by those representing the State.” In New York when a defendant is held in custody on a charge for which he is actually represented by counsel, he may not be interrogated or questioned by police 16 with respect to any matter in the absence of counsel. See People v. Burdo, 91 NY2d 146, 149-151 (1997); People v. Bing, 76 NY2d 331, 340 (1990); People v. Rogers, 48 NY2d 167 (1979); People v. Pope, 241 AD2d 756, 759 (3rd Dept. 1997). This is the essence of the indelible right to counsel and, despite the turmoil in certain applications of the indelible right to counsel, this distinct application has not been seriously challenged since 1979. In this case, there is no question that appellant was questioned and interrogated by police while he was incarcerated at the Greene County Jail on both July 27th and July 29th. The only issue that has arisen by court decision, is whether appellant was represented by counsel at the time he was interrogated by police. The lower court held that the arraignment memorandum that was contemporaneously executed by the town court judge that unequivocally stated that the Public Defender had been assigned to represent appellant was insufficient to establish that counsel had been assigned because, the town judge testified that he had an undisclosed, secret, personal intention that when he wrote those words he did not really mean them. (A 4-5). Before getting into the fallacy of this position and how it does not comport with the evidence, it is worthy of note that the lower court completely ignored the fact that New York Court Rules prohibits their conclusion. 17 New York Court Rules provides that where an individual that is unrepresented by counsel is brought before a town court for arraignment, the court may not issue a securing order fixing bail or committing the defendant to the custody of the sheriff without first making an initial determination as to the defendant’s eligibility for assigned counsel. NY Court Rules § 200.26(b), (b)(ii). If, the court determines that the defendant “is financially unable to obtain counsel, the court shall, prior to issuing a securing order . . . committing the defendant to the custody of the sheriff, assign counsel.” Id. Thus, Judge Baldwin was legally obligated to both determine appellant’s eligibility for counsel and to assign counsel if eligible prior to remanding him to the county jail. In rejecting appellant’s claim that he had been assigned counsel, the lower court credited the town judge’s testimony that there was no assignment of counsel because he didn’t follow the law. (A 4-5). Since the town judge’s testimony was that his assignment of counsel was actually a directive to the Public Defender to determine whether appellant was eligible for the assignment of counsel, the town judge was admitting that he intended to violate the law. (A 137; H 157). Oddly, it was the town judge’s explanation of what he intended to do and not what he actually did, that would constitute a violation of the law. In a finding that would make Joseph Heller blush, the Appellate Division held that it could credit the violation of a law to insulate a violation of one of the most cherished principles in our law. 18 Contrary to the lower court’s conclusion, the contemporaneously written assignment of counsel was an actual assignment of counsel. The fact that the town court was obligated to do so only serves to underscore the fact that it did. Notwithstanding the fact that the town court should be presumed to have followed the law (especially where the contemporaneous writing shows that it did) it is submitted that the remaining evidence and common logic compels s finding that appellant had been assigned counsel upon remand to the county jail. Resolving this issue starts and ends with the arraignment memorandum. Under the section headed “defendant requests counsel” Judge Baldwin checked the box marked “yes” and wrote Green County Public Defenders Office on the line marked “counsel assigned.” (A 48). At the bottom of the form, Judge Baldwin wrote “remanded in lieu of bail.” This form unequivocally establishes: (1) that defendant requested counsel; (2) that the town court assigned counsel; (3) that the court assigned the Greene County Public Defender’s Office to represent appellant. (A 48). It is simply beyond cavil that Judge Baldwin assigned counsel at arraignment. Despite filling in the section with the heading “defendant requests counsel” the town judge testified that appellant didn’t know whether he wanted counsel. Judge Baldwin’s claim that he was merely directing the Public Defender’s Office to conduct an intake (or what the trial court referred to as a “perfunctory referral”) would not only have been a violation of the law but, contradicts the precise 19 language he used. Given his excuse, it is difficult to comprehend why he would have written that he assigned the Public Defender’s Office to represent appellant instead of writing that he was directing the Public Defender’s Office to determine whether appellant qualified for their services. That is to say, why would Judge Baldwin be speaking in code? In any event, it is obvious that the Public Defender’s Office was never alerted to the fact that they would have to conduct an “intake” and take over the court’s responsibilities as evidenced by the fact that they appeared with appellant at his next court appearance without meeting with him at the county jail. The suggestion that Judge Baldwin was wholly unaware of the fact that appellant qualified for the assignment of counsel is belied by the fact that he acknowledged that he knew appellant had been represented by the Public Defender’s Office on the charge that resulted in his sentence of probation. (A 144; H 164). It is also submitted that this Court should apply the parol evidence rule to this specific issue. While it is conceded that the parol evidence is not generally applicable in criminal cases, the rationale for its inapplicability is not implicated here. People v. Dean, 56 AD2d 242 (4th Dept. 1977). The rationale being that the parol evidence rule is binding “only between those persons who are parties to the contract and their privies and doe s not apply in a criminal prosecution where the controversy is between the government and a party to the contract.” Id. The concern that the 20 parol evidence rule should not apply in criminal cases because the government is not a party to the contract, is not relevant here, where the writing itself was generated by the government. The same concerns that support the parol evidence rule’s application in contracts (especially where the witness is completely contradicting an unequivocal writing) are equally if not more applicable to this case. Crediting this type of testimony should be deeply concerning to this Court as it presents an obvious opportunity for abuse by the State and undermines the faith in our criminal justice system. Finally, the amount of contortion that the lower court has engaged in to avoid the application of appellant’s right to counsel should, itself, establish that this cherished principle has not been jealously guarded. On account of the foregoing, it is submitted that the lower court erred in finding that the town court did not assign appellant counsel. Since appellant was in custody on the charge for which he was represented counsel, it submitted that the police interrogations that followed on July 27 and July 29 violated his indelible right to counsel. It is submitted that the clear documentary evidence, as well as the law that required the assignment of counsel, established that the lower court did, in fact assign counsel. As an alternative, or fall-back, position, the lower court held that even if appellant had been assigned counsel, the indelible right to counsel did not attach because, assigned counsel did not “enter” prior to the custodial interrogations on July 27 and July 29. Contrary to the lower court’s opinion, an additional act of 21 “entry” is not required where the indelible right to counsel is based upon the assignment of counsel pursuant to Rogers. Since appellant was actually represented by counsel (indeed, for purposes of this argument, the lower court assumed that he was) on the violation petition (the charge that resulted in his custodial status, there was no need to establish that there was also an “entry” of counsel. That is so, because the concerns that give rise to the necessity for an “entry” of counsel are not implicated where a court assigns counsel to a defendant. In People v. Grice, a case that both the prosecution and the lower court cite as the foundation of their position, belies their point. See 100 NY2d 318 (2003). In that regard, both of them casually cite to the definition of “entry” provided by Grice as proof that appellant’s indelible right counsel did not attach. In doing so, they ripped the “entry” language out of context and misapplied it. A true reading of Grice shows that that decision did not, as the prosecution would have this court believe, require that an attorney assigned to represent a defendant must “enter” proceedings before the indelible right to counsel attached. When the Grice court spoke of “entry” it was in the very specific and narrow context of attorneys that have been privately retained. See id. (stating that the indelible right to counsel may attach when “an attorney who is retained to represent the suspect enters the matter under investigation”). Nowhere in the decision did the Court state that entry was necessary when counsel is assigned. 22 Highlighting the absence of any discussion of assigned counsel in Grice is not intended merely to be an expression of expressio unis est exclusio alterius, though that principle certainly applies. The “entry” requirement bespoken in Grice only makes sense in cases where counsel has been retained. Indeed, to speak of “entry” as a requirement to establish the attorney-client relationship is erroneous; as, entry is merely a means of objectively measuring when the attorney-client relationship was formed. Grice itself relates to the question of whether and when the indelible right to counsel attaches when the family and friends of an individual in custody retains counsel for said individual and notifies the police. The Grice court held that the notification by someone unaffiliated professionally with counsel is, standing alone, insufficient to bestow the protection of the indelible right to counsel upon the individual under custodial interrogation. The rationale undergirding the necessity of retained counsel to “enter” proceedings was not based upon some talismanic ritual necessary between attorney and client. Rather, the entire foundation for the “entry” requirement was to “‘provide an objective measure to guide law enforcement officials and the courts’ and confirms that counsel has been ‘actually retained’ to represent the defendant.” Id., quoting People v. Pinzon, 44 NY2d 458, 464 (1978); People v. Robles, 72 NY2d 689, 699 (1988). Thus, requiring “entry” by retained counsel serves to do nothing more than provide a measure to determine exactly when the defendant was represented by counsel. It is this requirement of “entry” that would prevent a later 23 self-serving claim that the defendant was represented all along so as to rehabilitate a fractured defense. Requiring entry does not establish an attorney-client relationship, it merely provides the courts with an objective baseline for reviewing when the relationship was formed. The same is not true when counsel is assigned by a court because, the baseline by which an objective measure of when the defendant was represented by counsel is the court’s order. Mandating that the Public Defender do anything further to establish the time when their client was represented by counsel serves no purpose whatever. To follow the lower court’s decision (that a Public Defender must visit their client in jail before their client will be protected by the indelible right to counsel) is absurd. Upon order from the court assigning them, the Public Defender represents the defendant as much as if counsel had been retained and provided a notice of appearance to the court. Moreover, requiring a public defender to actually visit their client or shout to the world that the court has assigned them to represent a defendant before the indelible right to counsel can attach will definitely lead to abuse. According to the lower court’s extreme decision, a defendant could be arraigned and assigned counsel (as here) and immediately be subjected to custodial interrogation on any and all matters. The following hypothetical illustrates this concern: a defendant is brought to a town court late at night to be arraigned on a 24 violation of probation petition; the only people in the courtroom are the police officers, the defendant and the judge; the court assigns counsel and remands him to the county jail; now the police have hours to interrogate him on any and all matters because no one from the Public Defender’s office has had a chance to “enter.” Indeed, according to the lower court’s decision, the police could begin their interrogation in the courtroom itself or during transport to the jail because, the public defender -- asleep in his or her bed has not had an opportunity to reiterate to the court or the police that they have been assigned. Obviously, “entry” by the public defender is complete upon the order assigning counsel. When assigned, a public defender does not have the discretion to deny the assignment. Indeed, when a court assigns counsel, it is the government itself, proclaiming that the defendant is not capable of proceeding without counsel. It is the court, itself, proclaiming that the defendant’s constitutional right to counsel is being provided and honored. It is spurious to concomitantly state that they are not, at the same time represented by counsel. Requiring Public Defender’s Offices that are overburdened with exploding caseloads and are generally understaffed to “enter” proceedings is not only superfluous to the court order but, would be unduly burdensome and would lead to their clients being placed in a position without the protection of this cherished constitutional right. Indeed, for any attorney practicing criminal law, the sight of a Public Defender meeting their client for the first time at the bench on a second 25 appearance is the norm. The reason for this is not lack of diligence or ineffectiveness but, rather the constraints of handling an ever expanding caseload. Moreover, the lower court’s decision is fraught with equal protection dangers. In that regard, Public Defender’s Offices differ in staff, funding and caseloads from county to county. Thus, a defendant assigned to the Public Defender in one county may well have a different experience with respect to when their attorney can “enter” a case from those in others. This will rear its ugly head in urban counties as well as rural counties where the caseload in the former and the understaffing in the latter will reach different results for their clients. It may also provide greater protection to those in counties that have public defender’s staffed in court throughout the night as opposed to smaller counties that do not. Indeed, an impediment to “entry” was present here as highlighted by the lower court: attorneys were prohibited from contacting their client by telephone. It is therefore submitted that because, the “entry” of counsel can be objectively measured by the date of the court order assigning counsel, in addition to the myriad of reasons stated herein, the lower court’s decision that there was also the need for the Public Defender to visit appellant in the county jail to bestow the constitutional right to counsel protection must be rejected. The court’s remaining claims are easily dispatched. The claim that appellant did not request counsel is entirely irrelevant for determining whether there has been an “entry” of counsel. See People v. Pinzon, 44 NY2d 458 (1978) (holding 26 that the indelible right to counsel attached where defendant did not request counsel and where counsel was retained on his behalf by friends and family). In any event, it is difficult to comprehend how the failure to request counsel is relevant in any way to the question of whether counsel “entered.” The court’s claim that since appellant “agreed” to speak with police before each custodial interrogation, counsel did not “enter.” First, this again appears displaced insofar as it is difficult to comprehend as to how the agreement to speak with police has relevance to whether counsel “entered.” Second, this statement represents a troubling misunderstanding of the well-settled and basic principle that once the indelible right to counsel has attached, a defendant is legally incapable of speaking with police in the absence of counsel. See People v. Hobson, 39 NY2d 479 (1976). Lastly, the court claims that since the police called the District Attorney who then allegedly called the town judge to inquire as to whether the court had assigned counsel is also a specious assertion. This claim is troubling because, it simply rehashes all of the concerns raised herein with respect to whether appellant was assigned counsel. As stated above, the court was aware of the fact that it had assigned counsel when it did so at arraignment. Thus, the later alleged telephone call that was established by hearsay is of no moment here. Moreover, since members of the NYS Police were present at arraignment when the court assigned counsel and were the agency that interrogated him on both occasions, it is absurd 27 to state that they were wholly unaware that appellant was represented by counsel. Indeed, knowledge should be imputed to them. Based upon the foregoing, it is submitted that the lower court’s discussion concerning the necessity of and the lack of showing an “entry” is irrelevant and should be rejected. It is, therefore clear that the New York State Police violated appellant’s indelible right to counsel each time they interrogated and/or questioned him at the Greene County Jail on July 27 and July 29, 2008. Thus, the lower court erred in refusing to suppress those statements. Since, this error was of constitutional dimension, any assertion by the prosecution that this constituted harmless error faces an elevated standard. The harmless constitutional error test requires reversal unless there is “no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus, harmless beyond a reasonable doubt.” People v. Crimmins, 36 NY2d 230, 237 (1975). Notably, despite providing two different grounds for rejecting appellant’s indelible right to counsel argument, the lower court did not find that their use was harmless beyond a reasonable doubt. And, indeed, the lower court could not have so concluded. The statements from July 27 and July 29 were integral parts of the prosecution’s case. Not only did the prosecution elicit testimony from two officers regarding the contents of these statements but, the notes from those interrogations were admitted into evidence. (A 53-62). These statements were referenced in both the prosecution’s 28 opening and closing statements. Not only were the statements used directly but, throughout the prosecution’s cases, witnesses provided testimony aimed at discrediting the remarks appellant was alleged to have made during those unconstitutional interrogations. Moreover, given the incriminating behavior of Matthew Conners, who abruptly left the area at the time his mother disappeared, stealthily returned to take scrap metal and firearms from her property, misled police as to where his mother lived when he reported her missing, was observed covered in mud and dirt only a day before her body was discovered and that her grave was marked with a grave-marker bearing his wife Josephine’s handwriting, it is impossible to conclude that the inclusion of these statements left “no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus, harmless beyond a reasonable doubt.” It is, therefore submitted that the lower court’s decision must be reversed and appellant’s conviction vacated. 29 POINT II APPELLANT’S CONVICTION FOR AGGRAVATED CRUELTY TO ANIMALS WAS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND MUST BE REVERSED AND DISMISSED. Appellant’s conviction for aggravated cruelty to animals is unsupported by legally sufficient evidence. Commonly known as Buster’s Law, Agriculture and Markets Law § 353-a(1) provides that “a person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty.” “Aggravated cruelty” is defined as conduct which “is intended to cause extreme physical pain or is done or carried out in an especially depraved or sadistic manner.” Id. The name of the law came from a domesticated cat whose master had doused it with kerosene and burned it alive. And, the legislative purpose behind the law was clearly and obviously aimed at targeting those individuals that exhibit extreme cruelty to animals. See NY Assembly Mem. in support of L. 1999, ch. 118, 1999 McKinney’s Session Laws of NY, at 1584). In signing the bill, Gov. George Pataki provided a memorandum in which he voiced approval for the enhanced punishment for “aggravated cruelty” that he believed meant throwing animals from windows, using them for target practice, hangings and starvation. See Governor’s Mem. Approving L. 1999, ch. 118, 1999 McKinney’s Session Laws of NY, at 1468). The NYS Assembly stated that the 30 purpose of the law was to target “the most egregious animal abuse cases where a person deliberately tortures an animal” and a list of acts deserving of enhanced condemnation included hangings, burnings and target practice for knife throwing. See NY Assembly Mem. in Support of L. 1999, ch. 118, 1999 McKinney’s Session Laws of NY, at 1585. The legislative history does not so much as suggest that the mere act of killing an animal was targeted by the law; nor does the mere employment of a firearm in killing an animal -- at least from the legislative history -- constitute “especially depraved or sadistic” conduct. In this case, the lower court has greatly diminished the “aggravated cruelty” portion of the statute and held either that (1) a single, fatal shot to an otherwise healthy animal constitutes aggravated cruelty or (2) that firing additional shots into a dog’s corpse so qualifies. While the killing of an otherwise healthy animal by gun shot is not something that should be condoned, it is far short of what the statute targets. Especially when the Third Department had earlier held that, standing alone -- kicking a dog with boots; picking up and shaking a dog; throwing a dog down a flight of stairs; and banging a dog’s head against a door -- were not acts of aggravated cruelty. See People v. Degiorgio, 36 AD3d 1007 (3rd Dept. 2007) (holding that while none of these acts, taken alone, were sufficient to establish aggravated cruelty, cumulatively they were). Even if this Court were to conclude that it was appellant that shot the dog, the evidence submitted by the prosecution failed to establish that the animal was 31 killed with aggravated cruelty. As the prosecution’s uncontroverted evidence showed, the dog was shot five times with anyone of the shots being fatal. (A 279; T 777). Indeed, Stone testified that the animal was killed instantly upon the first fatal shot. (A 279; T 777). Thus, the dog died as a result of a single gun shot wound and the other four shots were postmortem. It is submitted that while such actions, if true, are certainly objectionable they do not rise to the level of wicked, cruel or depraved acts (such as hanging, starving, torturing, burning alive, etc.) that the statute intended to hold-out from other acts of animal abuse or slaughter. To hold that shooting an animal in the head, causing instant and immediate death, qualifies as aggravated cruelty renders the definition of aggravated cruelty meaningless. Pursuant to the lower court’s holding, any killing of an otherwise healthy animal constitutes aggravated cruelty. There is nothing in the statutory language or the legislative history that supports such an expansive application. Nor, is there anything in the statute or legislative history that suggested that abusing an animal’s corpse constitutes aggravated cruelty. Again, while objectionable, it is not and does not constitute aggravated cruelty akin to burning alive, torture or starving, on account of the fact that in this case, the animal had already expired. It is therefore, submitted that appellant’s conviction for aggravated animal cruelty must be reversed and dismissed. 32 POINT III THE LOWER COURT ERRED IN FAILING TO SUPPRESS APPELLANT’S STATEMENT TO TROOPER LISCHAK ON JULY 27, 2008 INSOFAR AS IT WAS CONCEDED THAT APPELLANT WAS IN CUSTODY AND WAS NOT MIRANDIZED It is black-letter law that where an individual is subjected to custodial interrogation, he or she must be apprised of his constitutional rights to counsel and to remain silent. Unless this prophylactic warning is provided, any statements made during the course of said interrogation must be suppressed. Here, it was admitted by State Trooper Liscak that appellant was not provided with his Miranda warning in advance of the interrogation at the Greene County Jail on July 27, 2008. (A 132-133; H 24-25). The lower court found that the police were not required to Mirandize appellant because the “questioning was investigatory rather than accusatory.” (A 5). While the lower court deemed that the custodial interrogation was merely aimed at seeking information so as to determine Martha’s whereabouts, the evidence suggests that this was, in reality a police investigation. The exigency exception to Miranda applies only where police are acting under an emergency or exigency. See People v. Krum, 61 NY2d 187 (1984). In Krum, the Court theorized that where police question someone during an emergency, as in a situation where a person has recently gone missing, they are acting in their initial capacity of preventing crime and providing emergency 33 assistance. According to Krum, the intent of the questioning and the surrounding events can relax the constitutional protections of the defendant so as to allow the police officer to question the defendant. This pragmatic operational position -- that police should be allowed to speak with individuals during an emergency -- was light on the rationale as to why the responses should be made admissible at trial. That is to say, if the only purpose for allowing the police to question a defendant in an otherwise unconstitutional manner so that they can prevent injury or death during an ongoing emergency, then using those responses for purposes of incrimination later hardly serves the claimed initial ground for allowing the unconstitutional questioning. Thus, it is submitted that if this Court is going to allow this emergency doctrine, it should be limited to the purpose of the rule. Since the rationale behind the rule is to assist police in their primary objective of protecting people, such information has outlived its usefulness once the emergency has subsided and the usage of those statements at trial is wholly outside the bounds of the foundation for the rule. Indeed, if the statements could not be used to incriminate, individuals would be more likely to disclose and therefore, increase the likelihood that the police officer’s primary duty is fulfilled. In any event, there was no exigency here insofar as Martha had been missing for as many as three weeks before the police questioned appellant; and from the notes of the interview it is apparent that the police were engaged in a criminal investigation. 34 It is, therefore respectfully requested that this Court reconsider the admissibility of statements made pursuant to the Krom exception. Regardless of whether the Krom rule is abandoned or modified, it should not be applied here given the lack of any showing that there was any exigency. 35 POINT IV THE LOWER COURT ERRED IN REJECTING APPELLANT’S ARGUMENT THAT HE WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL WHEN THE TRIAL COURT REFUSED HIS PRETRIAL REQUEST FOR THE ASSIGNMENT OF NEW COUNSEL WITHOUT PROVIDING HIM WITH AN OPPORTUNITY TO BE HEARD. More than a week before trial, appellant wrote a letter to the court informing it that counsel was “ineffective on all levels” and that he wanted new counsel to represent him. (A 307). Appellant’s letter was neither vague nor hollow but, provided specific examples of counsel’s ineffectiveness. To that end, appellant asserted that counsel was not prepared for trial, had disclosed information about his case to the corrections officers at the county jail, had ignored suggestions for his defense and was relentlessly pressuring him to accept a plea. (A 307). Appellant closed his letter with the following heartfelt plea: “this is my life I’m fighting for, please help me get the legal representation I need.” (A 307). In response to his letter, the court brought the parties into chambers for a conference. Defense counsel requested the court to allow appellant to voice concerns but, the court rejected this approach on the ground that the court did not “know whether that would be appropriate without aid and assistance of counsel.” (A 149-152). The court also stated that it did not want to provide appellant with “an open mic” out of fear that he would say something incriminating. (A 149-152). Shutting down the conference, the court stated to 36 appellant that it was time for him “to remain silent” and denied him the opportunity to be heard. (A 149-152). Both the federal and state constitutions guarantee every indigent defendant the right to counsel. See U.S. Const. Amends. VI, XIV; NY Const. Art. I, § 6; Gideon v. Wainwright, 372 US 335 (1963); People v. Droz, 39 NY2d 457 (1976). Where an indigent defendant makes a serious complaint about counsel’s effectiveness, the court has a duty to inquire to evaluate the seriousness of the complaint. See People v. Sides, 75 NY2d 822, 824 (1990) (holding that courts must “carefully evaluate seemingly serious requests in order to ascertain whether there is . . . good cause for substitution”); People v. Medina, 44 NY2d 199, 207-208 (1978) (holding that courts must “carefully evaluate serious complaints lodged about counsel”). This is an ongoing duty and cannot be abdicated simply because it is made in close proximity to trial. People v. Linares, 2 NY3d 507 (2004); Ungar v. Saralift, 367 US 575, 589 (1963) (holding that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality”). Where a court, when presented with a serious complaint, conducts only a perfunctory inquiry into the request for re-assignment of counsel or does not conduct one at all, the defendant’s right to counsel is violated. See People v. Linares, supra at 511. Here, appellant provided the court with a litany of detailed complaints about counsel and, contrary to the lower court’s view, deprived him of 37 an opportunity to be heard. A review of the transcripts, reveals that appellant was shut-out by the court and the final response from appellant that the lower court characterized as a decision not to seek a change of counsel is specious based upon the apparent tone of the trial court’s discussion. It is also troubling that the lower court would find that counsel’s pretrial conduct was adequate in light of appellant’s disclosure that his attorney was discussing his case with law enforcement. Based upon the foregoing, it is submitted that the lower court’s decision was erroneous and appellant’s conviction must be reversed on the deprivation of his constitutional right to counsel. 38 CONCLUSION Appellant’s conviction for all counts must be reversed and remanded for further proceedings. Respectfully submitted, Dated: September 6, 2012 Troy, New York ____________________________ MATTHEW C. HUG, ESQ. Attorney for Defendant-Appellant Rensselaer Technology Park 105 Jordan Road Troy, New York 12180 Tel: (518) 283-3288 39