Opposition Brief — Abimael Ayala-Gonzalez, Petitioner v. New York

No. 19-6110

IN THE

Supreme @ourt of tbe Wnite! btuteg

AB IMAEL AYAI,A- G O NZALEZ,

Petitioner,

U

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

ON PNUTION FOR A WRIT Or CNNTIORARI TO TrrN

COUNT ON'APPEALS FOR THN SrErN OF NEW YORK

BRIEF IN OPPOSITION

JOHN J. FIyNN

Erig County District Attorney

DONNA A. MTI,I-,ING*

Mtcrupl J. Hrr,LERy

ERIE CouNry Dtsrntcr AmonNEy s Or,rIcn

25 Delaware Avenue

Buffalo, New York 14202

(716) 858-2448

Donna. milling@erie. gov

Attgrneys for Respondent

*Counsel of Record

L

TABLE OF CONTENTS

Page

TABLE OF CONTENTS

I

TABLE OF CITED AUTHORITIES

lt

STATEMENT OF THE CASE

1

FACTS

2

POINT ONE

PETITIONER'S CHALLENGE OF THE TRIAL COURT'S

REFUSAL TO DELIVER AN /N?EA-RACIAL IDENTIFICATION

CHARGE TO THE JURY IS

NOT OF FEDERAL

CONSTITUTIONAL DIMENSION. THE ABSENCE OF THAT

CHARGE DID NOT DEPRIVE PETITIONER OF A FAIR

TRIAL

28

POINT TWO

TRIAL COUNSEL'S REPRESENTATION WAS EFFECTIVE

UNDER THIS COURT'S STANDARD ANNUNCIATED IN

STRICKLAND V. WASHINGTON. NEW YORK STATE'S

..MEANINGFUL REPRESENTATION" STANDARD COMPORTS

WITH THIS COURT'S STANDARD

35

POINT THREE

THE TRIAL COURT CORRECTLY ADDRESSED A BRADY

VIOI,ATION BYTHE PROSECUTION, ENSURING THE ABSENCE

OF PREJUDICE TO PETITIONER. .

CONCLUSION

38

40

LL

TABLE OF CITED AUTHORITIES

Page

CASES

Arizona u. Youngblood,

488 U.S. 51 (1e88)

..31

People u Boone,

30 N.Y.3d 52r (2017)" ..

32

People u. Ayala-Gonzalez,

167 A.D.3d 1536 (4th Dept. 2018) . .

I

People u. Ayala- Gonzalez,

33 N.Y.3d e45 (201e)

1

People u. Baldi,

54 N.Y.zd 137 (1e81)

36

People u. Caban,

5 N.Y.3d 143 (2005) .

37

People u. Honghirun,

29 N.Y.3d 284 (2017)

.37

People u. Jaui,

33 N.Y.3d 949 (2019)

I

People u. Mijo,

33 N.Y.3d 951 (201e) . . . .

I

People u. Rabito,

33 N.Y.3d 953 (2019) .

1

People u. Turner,

5 N.Y.3d 476 (2005)

37

LLL

Strichland u. Washington,

466 U.S. 668 (1e84) . .

Wathins u. Sowders,

44e U.S. 341 (1e81)

35-37

3l

OTHER AUTHORITIES

Rahaim & Brodsky, Empirical Euidence uersus Cornmon Sense:

Juror and Lawyer Knowledge of Eyewitness Accuracy, T Law

and Psych. Rev. L,2 (1982)

32

STATUTES

N.Y. Penal Law S 125.25(1)

I

N.Y. Penal Law S 265.03(3)

I

1

STATEMENT OF THE CASE

Petitioner was charged with murder in the second degree (N.Y. Penal Law $

l25.25lll) and criminal possession of a weapon in the second degree (N.Y. Penal Law $

265.03[3]) for shooting and killing Manuel Mateo. Petitioner was tried by a jury and found

guilty as charged, whereupon the trial court sentenced him to concurrent terms of fifteen years

to life in prison for the murder and fifteen years in prison for weapon possession. Additionally,

he was ordered to serve five years of post-release supervision.

Petitioner appealed the judgment of conviction to the Appellate Division of the

New York Supreme Court, Fourth Department. On December 2I, 2OI8, that court

unanimously affirmed the judgment, holding 1) there was "ample evidence" to justift the

verdict; 2) the verdict accorded with the weight of the evidence; 3) the trial court rightly denied

defense counsel's request for a racial identification charge; 4) defendant received the effective

assistance of counsel; and 5) the sentence was not excessive. People u. Ayala-Gonzalez, 167

A.D.3d 1536 (4th Dept. 2018)

The New York Court of Appeals denied without comment leave to appeal the

Appellate Division's decision. People u. Ayala-Gonzalez,33 N.Y.3d 945 (2019); People u. Mijo,

33 N.Y.3d 951 (2019); People u. Jaui,33 N.Y.3d 949 (20L9); People u. Rabito,33 N.Y.3d 953

(201e).

2

FACTS

During the afbernoon ofAugustT ,2014, twenty-two-year-old Jennifer Moreno was

attending a family gathering at her mother's house at 37I Herkimer Street in Buffalo. At

about 3:15 p.m., while outside of the house, Moreno heard gunshots - possibly three. She saw

a man with "a blond ponytail" holding a small black gun and running away toward West

Delavan and Niagara Streets. Moreno gave the police a sworn statement on September 24,

2OI4 but, when shown pictures, was unable to pick anybody out (T 401-405, 407-409,41I;

numerals in parentheses after "T" refer to pages of the trial transcript).

On cross-examination, Moreno testified that the gunshots came from 347

Herkimer Street, several houses down from her mother's place. Bryan Santiago, with whom

she had been living, accompanied her when she traveled to the police station. Among those

attending the gathering the afternoon of the shooting, only she and Santiago had not been

drinking. Initially, Moreno testified that after the police had responded, she did not talk about

the incident with anyone who had attended the gathering, but simply resumed her normal

activities. She later testified that she and Bryan had spoken together of having seen a gun m

the running man's hand (T 411-419)

People's witness Juan Davila, forty-six, knew petitioner;petitioner and Davila's

girlfriend of seven years, Lucille Gonzalez, were cousins (T 426-427)

In August 2014, Davila was living with Lucille Gonzalez and her father, Felipe

Gonzalez, at 347 Herkimer Street. Petitioner - Abi, to Davila - occasionally stayed at the

house during that time but lived in Ohio. He had a little "gold ponytail"; the rest of his hair

was black. Davila and the Gonzalezes were living in the rear apartment, which could only be

3

entered from the back of the building. The backyard was fenced in (T 426-43I,450).

Davila was sitting outside in front of his apartment in the late morning or early

afternoon of August 7,2014 when a green van pulled up. The occupants, a male and female,

were unknown to him. Petitioner walked up to the van and argued with the male in Spanish,

which Davila could understand. They were arguing about drugs; defendant said the drug was

no good. Before driving off, the male in the van said that he would be back, and petitioner

replied that he would wait for him. Petitioner went to the backyard (T 433-435).

As Davila was about to enter the apartment, he saw petitioner standing on the

back porch. Petitioner told him that he was waiting for his friend. Davila went inside; Lucille

and her father were there. About an hour later, Davila heard. what sounded like firecrackers,

and they all ran outside. Davila rushed next door to the yard at 351 Herkimer. The male who

had been in the green van was lying on the ground, apparently injured. Davila went to the

corner of West Delavan and Herkimer Streets looking for petitioner, but he was nowhere to be

seen. He would not see petitioner again until trial (T 437-440).

On September 10, 2014, Davila went with the police to their headquarters and

gave a sworn statement. In 2015, sometime after testifying before an Erie County Grand Jury

about these events, he went to Tennessee. There he was arrested for and pleaded guilty to

failing to register as a sex offender. This was not his second brush with the law; his long train

of convictions included petit larceny, misdemeanor assault, loitering for drugs and prostitution

activity, disorderly conduct, harassment, reckless endangerment, criminal mischief,

misdemeanor drug possession, criminal trespass, criminal sale of marijuana, identity theft,

statutory rape, and twice failing to register as a sex offender (T 44I-442, 446).

4

Davila received no assistance from the Erie County District Attorney's Office

regarding his Tennessee charges and, in fact, was subpoenaed to testify about the present

matter. He did receive an unsupervised probationary sentence in Tennessee that was

conditioned on his coming to Buffalo to testifu when and if prosecutors here asked him to do

so. When he did come to Buffalo, the district attorney's office covered hotel and food costs and

provided transportation for a doctor's appointment. Davila knew petitioner and petitioner's

family and had preferred not to testify in this case, but he was compelled by subpoena to do so

(T 446-44e).

On cross-examination, Davila testified that he did not know anyone named

Michael Soto. When questioned further about his conviction for statutory rape, he admitted to

having thrown the male who was accompanying the female victim from a bridge (T 450-453).

A month had passed between the shooting and when Davila spoke with police

Defense counsel challenged him for not mentioning in his statement to police that he had seen

a green van and heard an argument about drugs. Repeatedly, when shown his statement on

the stand, Davila indicated that he could not read it without his glasses (T 455, 457-460)

The prosecution's next witness, Buffalo Police Detective Sergeant Harvey Frankel

of the crime scene unit, arrived at the already-secured crime scene on August 7, 2014 at

approximately 4:40 p.m. He conferred with Detective Sergeant Carl Lundin and Detective Joy

Jermain of the homicide squad, who pointed out evidence they wanted collected (T 467-47O)

The body of Manuel Mateo lay near a stockade fence on the driveway running

between 347 and 351 Herkimer Street. A board of wood similar to the wood on the stockade

fence was between his legs. A flip phone was found a few feet away. Mateo had some three

5

hundred seventy dollars in cash, a phone, a wallet with a Puerto Rico driver's license, and a

bag containing heroin on his person. A bullet hole was in his back. Several .380 caliber

cartridge cases and cigarette butts were found nearby and submitted to the laboratory for

analysis (T 47 I-47g, 482-485, 503).

Frankel attended Mateo's autopsy at the Erie County Medical Examiner's Office

and collected a sample of his blood. The sample and a bullet that Dr. Yarid removed from

Mateo's right chest area were submitted to the laboratory for future analysis G a86-488).

Frankel testified on cross-examination that whoever loaded the semi-automatic

weapon used in the shooting had to have touched all of the bullets'shell casings, all of which

the police collected that day. Shell casings are not tested for fingerprints, however, which

Frankel said "do not survive the firing process." DNA also does not survive the firing process,

according to Frankel. DNA can be taken from the grip, trigger, and barrel of a gun - or from

the top of a chain link fence. No one requested that samples be taken from the top of the fence,

or from a chair or bench beside the fence, for fingerprint or DNA testing. No pictures were

taken of the backyard of 347 Herkimer Street, and no evidence was collected there (T 492-499,

502).

Twenty-year-old Nathalie Perez, a high school graduate and fragrance vendor at

Macy's, grew up in the New York City area and was living there at the time of trial. Manuel

Mateo was Perez's Godmother's boyfriend (T 506-507).

In Augus t 2014, she and Mateo drove up to the Buffalo area in Mateo's green

minivan. She was Mateo's driver; he did not know how to drive. He had asked her to go to

Niagara Falls with him and mentioned visiting old friends. They were not in any sort of

6

romantic or sexual relationship; Mateo was paying her to drive him there. Perez knew Mateo

to be involved with selling drugs but did not know whether this trip was for that purpose (T

507-508).

They arrived in Buffalo at nighttime on Tuesday, August 5,2014. They went to

a bar, which was closed, where they met someone named Miguelle and his wife (T 508-510)

That first night in Buffalo, Perez stayed in a hotel. On Wednesday, she and

Mateo went to some stores and returned to the same bar that night. The bar was closed, but

Miguelle and his wife, and a friend of Miguelle's named Javi, whom she did not know, were

there. Javi was "sort of skinny" and had "about three, four inches of blond hair in the back."

Perez learned that Javi also went by the name Rabito (T 508-512).

Perez spent about two hours in the bar that night. She and Mateo socialized with

Javi and Mateo, and the two men exchanged phone numbers. Perez, Mateo, Javi, and another

individual left the bar together. After dropping off the unknown individual, they dropped Javi

off at his Herkimer Street house at about 2:00 a.m. and returned to the house in which Mateo's

friend was letting them sleep (T 512-514)

On Thursdaymorning, AugustT,2|l4,Perezand Mateo "woke up to phone calls."

Mateo was rushing Perez out of the house. She and Mateo went to Herkimer Street, arriving

there about 8:00 or 9:00 a.m., and parked in front of the "second house next to the red

building." Mateo got out to speak to Javi, though Perezcould not hear the conversation. Mateo

and Perez left, had a meal, and returned to the same house sometime in the afternoon. Mateo

made a phone call and then entered through the fence gate of the house by the red building;

Perez remained in the van, which was parked in front of the fence (T 515-518).

7

Two or three minutes later, Perez heard four or five gunshots. She saw someone

run through the fence gate Mateo had entered earlier - someone average or short in stature,

stocky, and with something on his head - but did not get a good look at him. Realizing what

was happening, Perez drove off and ended up at the house where they had been staying. She

called her sister crying and seeking advice, and Miguelle, who tried to calm her. She returned

to the same bar after speaking with Miguelle and cried while relating the story to him and his

wife. Perez returned to New York City alone (T 515-524)

Upon her return ,Pereztalked to her sister about the traumatic events. Her sister

became angry, called Buffalo police, and made her speak to them, which she did over the phone

on August 8,2OI4. Her account to the police included the names Javi or Javier (T 525)

Perez gave Buffalo police detectives a sworn statement when they visited her in

New York on August 12,2OI4. Despite showing her "a bunch of pictures of people," she did not

recognize anyone. She returned to Buffalo to testifu before a grand jury concerning this case

As to her grand jury and trial testimony, the district attorney's office paid for her flights, her

hotel stays, and her food. She did not want to come to Buffalo; she was subpoenaed to come,

and a detective interrupted her workday at Macy's - the day she was promoted - by telling her

they would get a warrant if she refused to comply. Reluctantly, she testified in the trial (T 525527)

On cross-examination, Perez testified that she and Mateo shared a hotel room

with two beds when they drove up to Buffalo together. She said that was the first time he had

her drive him someplace for money. She claimed to have told police that Mateo was her

Godmother's boyfriend, but this fact was missing from her statement. Besides Herkim er,Perez

8

could not remember the name of any of the streets they traveled in Buffalo (T 531-533,541543).

Perez was questioned about the other person in the car besides Mateo and Javi

the night she gave Javi a ride home to Herkimer Street. She could not recall his name but

described hirn as stocky and wearing baggy clothes. The police did not show her pictures from

inside the bar to identifu him (T 542-544).

The morning after her first night in Buffalo, Javi and Mateo had a discussion on

Herkimer Street near the van. In her statement, she had said noon. Javi was on the phone

and seemed a little aggravated, but Perez did not recall he and Mateo arguing (T 545-549)

Petez testified that in the shooting's immediate aftermath, she saw two

individuals: One was running up the driveway toward her with an object in his hand; another

was in the background. She was without her glasses and could not see the person in the

background clearly. The person running up the driveway was stocky and, to her mind,

definitely not Javi. She never identified the person in the background as Javi. When she drove

off, a black car behind her drove off also. A yellow truck yielded to Perez as she approached

it. When Perez returned to the bar, Miguelle did not say that they should call the police;

rather, he told her the police would eventually contact her and to cooperate with them without

anxiety. He gave her money to return to New York City (T 550-554)

Homicide Detective Scott Malec responded to 351 Herkimer Street on August 7,

2014 and attempted with fellow detectives to get people fromS4l Herkimer Street to come out

and talk. The detectives failed that day. In Malec's experience, this failure was unsurprising;

garnering witness cooperation in homicide investigations is often difficult. Malec persisted,

9

however, .and, eventually, Juan Davila and his girlfriend spoke with him (T 557-560).

Malec met with Christina Acosta at headquarters. Acosta gave a statement and

a description of the suspect. Her description was entered in a computer, which in turn yielded

web images - mug shots - that she was asked to view. She indicated someone to Malec, and

he developed a photo array based on that image. That array was not shown to Acosta,

however, but to her boyfriend, Pedro DeJesus, by Captain Gramaglia. Meanwhile, Acosta

continued to view web images. She indicated a different person as well, which Malec noted.

There were three pages in which she made some indication of a person to Malec. She viewed

over two hundred fifty pages in all; none included pictures of petitioner (T 560-564).

Petitioner's picture was not in the photo array that Malec gave to Captain

Gramaglia to show to DeJesus. A photograph of a person named Michael Soto was, however.

While Acosta and DeJesus were being spoken to separately by different detectives on August

7,2014, Malec lacked any suspects' names (T 564-565)

A fellow detective's phone interview of Nathalie Perez on August 8th yielded a

name: "Javi," which detectives thought could be for Javier, or possibly Xavier, with an "X".

Detectives Jermain and Malec flew to New York City onAugust l2thto interview Petez. They

took a statement from her and showed her several mug shots of Hispanic males named Javier

or Xavier, but she did not pick anyone out. Petitioner's photograph was not among those mug

shots (T 565-567).

During her interview, Perez told detectives that the bar she had visited during

her time in Buffalo was Pandora's. She also provided a name, Miguelle Diaz-Rios, a person

they then wished to interview. The detectives returned to Buffalo the same day. The next day,

10

August 13th, they met with Diaz-Rios at Pandora's. He spoke little English, so the detectives

brought in Kenneth Ayana, a Buffalo police officer fluent in Spanish. Diaz-Rios showed the

detectives photographs on a Facebook page, which they printed out and used in the

investigation. One of the photographs, a birthday advertisement, pictured. petitioner with the

words "Rabito De Oro birthday bash" (T 567-570).

Malec returned for a second interview of Diaz-Rios on August 28th, this time

accompanied by Detective John Garcia, who was also fluent in Spanish. This interview led the

detectives to investigate a different name: "Abi." This name was linked with a victim of a home

invasion listed as Abimael Ayala in the crime report for that incid.ent (T 570-571).

The investigation continued into September. On September 10th, Malec,

Facebook photographs in hand, took a statement from Juan Davila. He also interviewed

Davila's girlfriend, whom he learned was petitioner's cousin, but she grew uncooperative

toward the investigation (T 57L-572).

Also on September 10th, ChristinaAcosta was shown some ofthe newer, Facebook

photographs. She did not recognize anyone in them (T 573-574).

Pedro DeJesus was shown the Facebook photographs on September 17th. He

picked out someone other than petitioner. Notably, none of the Facebook photographs obtained

in the investigation showed the back of petitioner's head $ 574).

The detectives followed up on information regarding the yellow truck that Perez

claimed had yielded to her as she was driving away from the scene. In September, their search

led to a home on Lilac Street in South Buffalo and two brothers: Felix O'Brien Vellon and Felix

Omar Vellon. Each gave a statement separately from the other (T 575-576).

11

A smart phone and a flip phone were recovered near the victim's body. Phone

records were acquired for the victim's phone and petitioner's phone. Records for petitioner's

phone led detectives to a person named Roberto Mitchell, whom they interviewed around

September 23rd. Other information led them to possible witnesses Bryan Santiago and

Jennifer Moreno, who both gave statements (T 575-577).

Malec and Detective John Garcia went to Ohio in February and March 2015. In

late March or early April 2015, petitioner agreed to come back to Buffalo with Malec (T 57857e)

On cross-examination, Malec testified that of the hundreds, possibly some two or

three thousand, images shown to Christina Acosta, she picked out two people, Orlando Colon

and Michael Soto. These two individuals "had similar features to the shooter." Soto lives at

353 Herkimer Street (T 582-584).

Malec acknowledged that Pedro DeJesus had picked Soto out of a photo array as

resembling the suspect. To Malec, it appeared from text messages that Mateo had been a drug

dealer and that this case had involved heroin (T 586-587)

The investigation revealed that petitioner was living in Buffalo at the time of the

crime. However, he was from someplace else originally and left Buffalo after the crime (T 596).

On redirect examination, Malec testified that despite Christina Acosta and Pedro

DeJesus's selection of Michael Soto from photographs shown to them, neither was sdre of their

selection. Probed by defense counsel about DeJesus and Acosta both picking Soto out despite

being kept in different rooms without an opportunity to communicate with each other, Malec

indicated that they selected Soto for his similar appearance to the shooter (T 581-584,597 -599)

T2

Thirty-two-year-old Felix Omar Vellon testified for the prosecution that he did not

know anyone by the names Abimael Ayala-Gonzal ez, .Lbi, or Rabito, or anyone named Miguelle

Diaz-Rios. He did, however, know petitioner exclusively as Mijo, one of the individuals he

recognized from a photograph - People's Exhibit 66. He identified petitioner during trial as

the person he knew as Mijo and recalled that, back in August 2014, petitioner was skinny and

had a yellow ponytail. (T 612-611,628)

Petitioner was at VeIIon's South Buffalo house at around 4:00 a.m. on August 7,

2014. VeIIon was drinking in celebration of his birthday, and petitioner left by taxicab after

about an hour's visit. Later, Vellon, using his father's cell phone, called petitioner to see if he

had made it home alright (T 618-620).

Later that morning, petitioner called Vellon on his father's cell phone and Vellon

called him back. They arranged to get money and go drinking. Using his father's yellow Ford

pick-up truck, Vellon picked petitioner up somewhere on the west side, and they rode out to

West Delavan Street so petitioner could get money and celebrate with Vellon. Vellon parked

the truck in a certain block on West Delavan Street facing Grant Street and waited inside for

around thirty minutes. He turned the truck around so that it was facing Niagara Street in

order to pick petitioner up. A motorcycle passed by just before petitioner came running up to

the truck (T 62O-6i27).

Petitioner opened the door to get inside. He had a gun in his hand, which Vellon

questionedhim about. He repliedthatitwasbetter notto ask (T 627-628). Petitioner

directed Vellon to drop him off at 14th and Connecticut Streets. Vellon reached a stop sign on

West Delavan Street when a green minivan almost struck his truck as it rapidly passed by

13

After d.ropping petitioner off, Vellon went home and then rode his motorcycle to Niagara Falls

and stayed by the water park, something he commonly did (T 628-630, 639-641).

Vellon did not call the police that day about what he had witnessed; he felt he

lacked. knowledge about the matter, testifring, "I don't know anything" (T"631).

The police found Vellon's father in September of 2014 while looking for the truck.

Vellon's mother and father took him to police headquarters on September 20,2014. Vellon's

brother also attended the meeting and was interviewed separately. The police read Vellon his

rights and a recorded interview followed. He also provided police a sworn written statement

(T 632-633).

Vellon told the police everything he knew when he spoke with them. He would

later find out that someone he did not know, and had nothing to do with, had been killed on

Herkimer Street on Augus t 7th. He testified that he was in no way involved in that person's

death (T 633-635).

On cross-examination, Vellon testified that he has been living in the Buffalo area

since the age of nineteen. He originally lived on York Street on the west side, not far from

Herkimer Street (T 635-636).

When shown pictures by the police, Vellon circled petitioner; his brother; a short,

stocky person possibly named Pavo, or Pablo; and another individual. The police did not

inquire of Vellon further about who the latter two individuals might be. Vellon knew that

petitioner did not live in Buffalo "regularly" (T 641-6 +5,6+S). Police did not request or in

any way try to obtain a DNA sample from Vellon during their meeting. They did not ask him

what his cell phone number was or try to find out if he owned a flip phone, nor did they have

I4

him view photo arrays or mug shots (T 644-646).

Vellon, whose birthday was August 4th, admitted to drinking throughout the

week of the incident, which was in keeping with a Puerto Rican tradition of celebrating one's

birthday for the whole week. Petitioner also drank, and was drunk, the entire week, claimed

Vellon. Vellon testified that he and petitioner had been drinking at the former's house on

August 7th sometime between 4:00 and 5:00 &.h., after which petitioner had left in a taxicab.

Petitioner called him later, and Vellon picked him up on Carolina Street (T 646-650).

In September, Vellon told police that he had not heard gunshots, just a motorcycle

pass by. The police records reflect that Vellon had used the pronoun "they" in explaining.who

was taking too long as he was ready to pull away in his truck; Vellon testified that he had said,

or meant to say, "he" to police, not "they," and that his mistake was due to his imperfect

English. He does not know what became of the gun that he saw in petitioner's hand when

petitioner entered the truck. He testified that when he had stopped to allow the green van to

pass by, he saw that its driver was a woman (T 646-654).

On redirect examination, Vellon was shown a portion of his statement - not the

part where he described the moments before pulling away in the truck - where he had referred

to the person who had called his father's phone, petitioner, variably as "he" and "they." This

oddity renders the earlier example ofVellon's pronoun switch adequately explained by his selfdescribed deficient English (T 655-656).

Vellon also testified on redirect examination that the only phone he used was his

father's phone; he had no phone of his own and did not carry a flip phone. He did not lose his

father's phone, the phone he carried around with him, on August 7th. Neither the person he

15

identified as Pavo or Pablo, nor the person he marked as "Number 4" on People's Exhibit 66,

got into his truck with a gun on August 7th (T 656-657)

Next, the prosecution called sixty-year-old Deborah Brooks to the stand. Her

extensive criminal history dates back to 1976 and consists of some twenty-five convictions,

including disorderly conduct, attempted petit larceny, attempted possession of stolen property,

attempted third-degree assault, attempted reckless endangerment, reckless driving, petit

larceny, obstructing governmental administration, and criminal possession of a controlled

substance. Many of her crimes were driven by drug addiction. She also has felony convictions

for grand larceny and possession of forged instruments. Brooks was using crack cocaine and

heroin in August 2014 (T 660-664).

On August 7,2014, around 3:00 p.m., Brooks was on West Delavan Street near

Herkimer Street to buy crack cocaine. She was with her signifi.cant other in her parked car,

a gray Chevy Aveo, facing Grant Street. She was not using drugs while she was sitting in the

car and does not recall having used any drugs earlier that day. She did not end up buying

drugs that day; the seller never came (T 664-666)

Brooks had pulled up behind a yellow truck, which had a "Splash" sign on the

back left side. At some point the driver of the truck performed a lJ-turn, stopped, waited a

moment, and slowly backed the truck up to the corner. Brooks heard gunshots; the truck began

moving slowly. A male came running from Herkimer Street with a black handgun in his right

hand and appeared to be motioning with his hands to the driver of the truck to stop. The

armed man, who had long hair below his ears and was wearing a white T-shirt and black

shorts, hurriedly entered the truck (T 666-671)

16

Brooks did not see where the truck drove off to. She heard the sound of sirens as

she proceeded in her car toward Grant Street. Three children, ten or eleven years old, rode by

on bikes, Iooking "all over." A woman was standing in the middle of the street waving police

on (T 67I-672).

The next day, Brooks called the police to say that she had information about these

events. Some time passed without a return call, so Brooks called again and eventually met

with them in June 2015. She gave a sworn statement at police headquarters on June L2,2015

At that time, she had no pending charges against her and was not seeking anything in return

for her information (T 672-673)

On cross-examination, Brooks testified that during the approximately ten minutes

that she was waiting in her car behind the yellow truck on August 7 , 2014, she did not see or

hear any motorcycles pass by. The police did not show Brooks photographs of anyone when

they met to discuss the information she had. About a month after the incident, she saw the

same yellow truck on Pennsylvania Avenue (T 675, 677,679-680).

Thirty-two-year-old David Diesenbruch, who works in construction, was on

probation during the trial and testified for the prosecution with his attorney present

Diesenbruch pleaded guilty on October 6, 20L5 to attempted criminal possession of a weapon

in the second degree regarding the discovery of two illegal guns on his property. He was

sentenced on January 11, 2016 to weekends in jail and five years of probation. He received no

benefit from the district attorney's offi"ce for his testimony in this case; the charge and plea

predated his involvement in the current matter. He was, however, given a letter from the

district attorney's office advising him that he could not legally be prosecuted again for

t7

possession of the gun (T 683-685)

The prosecution first reached out to Diesenbruch in April 2016 regarding a gun

found on his property - in his backyard - on July 2,2015. Diesenbruch's DNA was found on

the gun. He had obtained the gun some time after August 7, 2014 from a friend named

Mohammed, a relative of his brother-in-law, while at 62 Hawley Street, a construction site on

the city's west side. The defense did not cross-examine Diesenbruch (T 685-688).

Pedro DeJesus, a thirty-three-year-old bartender living in Buffalo, was convicted

in July 201-l of misdemeanor criminal possession of a controlled substance - crack cocaine.

In June 2003, he pleaded guilty in federal court to conspiracy to distribute cocaine and served

three years in a federal prison (T 689-690).

Back on August 7, 2014, DeJesus's brother, Omar, was living at 351 Herkimer

Street with his significant other and three children, ages fi.ve, seven, and two. DeJesus and

his former girlfriend, Christina Acosta, were at that residence at around 3:15 or 3:20 p.m. on

August 7,20L4 to pick up two of Acosta's children, a nine and seven year old (T 689-692)

DeJesus was knocking on the door of his brother's house when he heard gunshots,

which sounded like they were coming from his brother's backyard. DeJesus ran toward the

fenced right side of the house where he could see into the backyard. At first he saw nothing

when he looked up the driveway by the fence; he just heard the children screaming. Then, he

saw an unfamiliar heavy-set man trying to climb over the fence before letting go of it and

falling down. Another man appeared from the yard of the house to the right. He had a gun in

his hand. When he reached the area where the heavy-set man was lying, he aimed the gun at

him without shooting and said in Spanish, "I told you I was going to kill you," before running

18

toward Delavan (T 692-695)

The man with the gun was light skinned, five feet six or five feet seven inches tall,

thin, and wearing a hat over short hair. Worried about the events he had just witnessed,

DeJesus called 911. As these events unfolded, Acosta was on the porch. DeJesus banged on

the door of his brother's house, and he came out from the back of the house to the fence, which,

with the help of neighbors, he proceeded to tear down. Once the gate was opened, DeJesus saw

the victim but did not recognize him (T 696-697,700).

That same day, DeJesus and Acosta went to police headquarters, and, at around

4:30 p.m., he gave a sworn statement. The police showed him a photo array. Of the person in

the number 2 position, he said, "It looks a little like him, but I'm not sure." He testified that

he does not know anyone named Michael Soto (T 7O2-7O4).

DeJesus returned to the Homicide Office sometime around September 17,2074.

He was shown three photographs then. He did not circle anyone in the photograph received

as People's Exhibit 71. In the photograph received as People's Exhibit 72,he circled a person

in red with a Bulls hat and indicated that he had done the shooting on Herkimer Street. He

circled the same person in People's Exhibit 73. During trial, DeJesus designated by his initials

a person wearing purple in People's Exhibits 72 and 73, who had looked familiar to him from

somewhere else (T 710)

On cross-examination, DeJesus testified that police took him from the scene to

police headquarters in an unmarked car. Acosta was taken in a separate car. DeJesus was

neither questioned nor shown photographs during this ride (T 771-712)

DeJesus did not pay attention to the people who lived at 353 Herkimer Street

19

He could not say whether drugs or guns were leaving or entering that house (T 7I2-7I3)

It was between two and three o'clock in the afternoon when DeJesus went to his

brother's house on August 7, 2014. The children were in the backyard playing when the

shooting happened and would have witnessed whatever occurred there. DeJesus was paying

no particular attention to anything happening on Delavan Street and, consequently, never saw

a yellow truck or a green van pull up. DeJesus merely heard the gunshots; he could not say

who had fi"red the gun. Though he saw one person leave by the driveway, he cannot say

whether anyone else might have left that backyard by another way - by climbing over a fence,

for example. DeJesus did not focus on the person he did see, or watch where he went; he was

too concerned for his children. He remained on the porch but looked up the driveway by

Ieaning over the railing (T 715-719)

When shown the photo array at police headquarters later that day, DeJesus

understood the seriousness of the events and the importance of any indications of possible

culprits he might make. Nevertheless, he circled an individual the same size as he but who

was only in his mid twenties - several years younger than he. Meanwhile, Acosta was rn a

different room - also viewing photographs, as DeJesus would learn afterward - and had no

interaction with DeJesus before his selection of someone in the photo array. The two would

discover afterward that they had each picked out a photograph (T 72I-723).

A week or so later, the police showed DeJesus pictures of what appeared to be a

celebration. He circled in one of those pictures the person he believed had come down the

driveway during the events of August 7, 2OI4. The person he circled was wearing a red

Michael Jordan sweatshirt in the picture. Despite not wanting to implicate the wrong person

20

for the shooting, he testified of the person he circled, "Yes, I guess, that looks like [the person

coming down the driveway]." DeJesus had, however, written on People's Exhibit 70 of the

person he circled, "I recognize him from the shooting on Herkimer, he did it" (T 724-728).

DeJesus stated on redirect examination that it was his concern about picking out

the wrong person that made him hedge his selection of number two in the photo array by

saying that it looked a little like the person he saw on August 7,2014. People's Exhibit 66

includes this notation by another witness concerning the person in the red sweatshirt: "seen

before, can't remember names." A notation by an individual shown in a Yankees hat reads,

"O'Brien, my brother" (T 724-730).

Twenty-nine-year-old Christina Acosta, a teacher assistant of seven years, has two

children, ages ten and eight. Her boyfriend in August 2014 was Pedro DeJesus. She and

DeJesus went to pick up her children at DeJesus's brother's house at 351 Herkimer Street in

the afternoon of August 7th. Gunshots rang out as she was walking up to the porch. She

banged on the door to be let inside; Pedro went to the other side of the porch. She saw a man

run out of the side of DeJesus's brother's yard, but only the back of him. He was of medium

height, had a blond mullet, which she also described as "a chunk piece of hair on the bottom,"

and was wearing a black shirt with'Jean shorts or jean pants." He had a black gun in his right

hand and was running to Delavan Street (T 732-737).

When DeJesus's brother opened the gate, Acosta could see the victim lying on the

ground. She did not know who he was (T 737).

Acosta spoke with police at police headquarters that afternoon, as did DeJesus,

but the two were taken separately. She gave a sworn statement and was asked to view

2I

photographs and see if she recognized anyone. She indicated her recognition of two individuals

among the photographs shown to her. Asked if she recognized. anyone from the photo array,

she responded with a "maybe," noting that the person on page 34looked like the person with

the gun but had different hair, and that although the person on pages 218 and 219 had similar

features, she was unsure (T 737-743).

She returned to police headquarters about a month later, on September 10, 2014.

She was shown different photographs but could not pick anybody out (T 743-744).

Acosta acknowledged on cross-examination that she viewed a lot of photographs

during her meeting with the police - possibly over two thousand. She described the man with

the gun as being about twenty-five years old and, in People's Exhibit 61, selected a person

named Michael Soto, who appeared to her of similar age. Acosta did not know the name of the

person she selected., however (T 752-753,755).

Later, the police had her view more photographs, including People's Exhibit 75.

She did not see the man with the gun among the people displayed in that exhibit (T 753-754).

The People's next witness, Mohammed Shafie, was granted immunity before

testifying before the jury. A twenty-eight-year-old used car salesman with a 2014 conviction

for possessing a small amount of marijuana, Shafie admitted to at one time illegally possessing

a handgun - a Hi-Point .380 semi-automatic pistol. He gave the weapon, which a nowdeceased person named Jo-Jo had given him, to David, whose last name he does not know,

sometime after August 7,20t4. David's sister is married to Shafie's cousin (T 75S-765).

Nicole Yarid, Associate Chief Medical Examiner for Erie County, has performed

approximately eight hundred autopsies in her career. She performed the autopsy of Manuel

22

Mateo on August 8,2014. Mateo was five feet seven and one half inches tall and weighed one

hundred eighty-six pounds. He was wearing a red short-sleeved shirt with a collar and khaki

shorts. He had a wallet, some money, and a little plastic bag with "some sort of gray-white

stuff in it." He had multiple abrasions or scrapes on his left inner upper arm and on his

forearm, around both knees, and on his right inner thigh (T 769-776).

Mateo had a gunshot entrance wound on the left side of his back. There was no

exit wound; the bullet was still inside his body. Yarid did not observe any fouling or stippling,

which meant either that the gun had been fired from more than a couple of feet away from

Mateo or that something, such as heavy clothing or a waII or window, had blocked the soot or

smoke. No stippling or soot was seen on Mateo's shirt (T 777-779).

The gunshot had injured Mateo's heart, liver, left lung, and one of his ribs. He

had "quite a bit of blood in his chest cavity": one liter in the space around the left lung; two

hundred milliliters in the right chest cavity; and three hundred milliliters in the pericardial

sac. He had a small amount of blood, fifty milliliters, in his abdominal cavity. Such an injury

is generally fatal (T 779-78I).

Yarid recovered a bullet from Mateo's body and gave it to the police. The bullet

was not tampered with between its recovery and delivery to the police, and it never left the

custody of the Medical Examiner's Office in that period. In fact, Detective Sergeant Frankel

was there to take custody of the bullet upon its recovery from Mateo's body (T 78I-782).

Toxicology testing yielded no findings of drugs or alcohol in Mateo's system. Yarid

opined, based on her autopsy and the results of the toxicology testing, that Mateo had died

from a gunshot chest wound.. She could say nothing of the events or circumstances surrounding

23

the shooting (T 783-788)

Bryan Santiago, twenty-four, came up to the Buffalo area from Puerto Rico in

2009. His lone criminal conviction came in 2011, felony possession of a narcotic drug with

intent to sell (T 793-795)

OnAugust7 ,2014, Santiago was at his mother-in-law's house on Herkimer Street

with his family. Neither he nor his significant other, Jennifer Moreno, were drinking alcoholic

beverages that afternoon. He heard multiple shots at about 3:20 p.m. and caught a fleeting

glimpse of the back of a man in black clothing running on Herkimer Street toward West

Delavan, and from there toward Niagara Street. The man had "a little ponytail" and was

carrying a chrome-colored handgun. Santiago went to the victim, whom he had never seen

before (T 795-798, 802).

Santiago and Moreno went to Buffalo Police Headquarters on Septembe r 24, 2014

and were interviewed in separate rooms. He gave a sworn statement and was shown pictures,

People's Exhibit 77,but did not recognize anyone in them (T 799-802)

The defense elicited on cross-examination that Santiago had described the gun

to police as a big gun without using the word handgun. He had, however, indicated that it was

in the man's right hand. He had not noticed a yellow pickup truck or a green van on the day

in question (T 806, 811, 814).

Thirty-one-year-old Roberto Mitchell, who has convictions for driving with a

suspended license, disorderly conduct, and felony sale of a controlled substance, knew

petitioner by the names Rabito De Oro, Mijo, and Millones. He knew petitioner back in August

2OI4, when petitioner had a gold ponytail, and saw him at Pandora's Bar a couple of times (T

24

820-824)

Petitioner came to Mitchell's home in the early morning of August 7 ,2OI4. They

had a couple of drinks. Later that day, while Mitchell was home at 22 Esperar Street,

petitioner phoned him requesting a ride, but he declined. Petitioner hung up the phone, which

marked the end of their contact (T 824-826).

At the request of police, Mitchell accompanied them to headquarters on

Septembe

r 23, 2014. They had him view pictures. He recognized Millones, O'Brien, and

Miguelle in one of them - People's Exhibit 78. Millones was wearing "the black with the red

Jordan on it" (T 827-829).

On cross-examination, Mitchell indicated that the men depicted in People's

Exhibit 78 would occasionally all hang out together at Pandora's Bar. He gave some

information to police about certain people in the picture on September 23,2014. Although the

police did not follow up with him to try to learn names or addresses for certain of these people,

Mitchell provided this information to them (T 831-835).

Petitioner had left Mitchell's house the morning of August 7, 2014 by taxicab.

Mitchetl did not know where petitioner went from there. When petitioner called Mitchell on

the phone later that day, he was talking fast. According to Mitchell's statement to police, when

he had declined. to give petitioner a ride because he had to look after his son, petitioner told

him to bring his son with him. Mitchell testified, contra his statement, that he never told

police that petitioner had told him to bring his son (T 835-840).

Firearms examiner Jennifer Coombs testified that the forensic laboratory received

People's Exhibit 79, a Hi-Point .380 semi-automatic pistol, which was test fired by another

25

fi.rearms examiner, Cody McKellar. The first of three test fires involved a cartridge that had

been submitted to the laboratory with the pistol; the second two cartridges used were from the

laboratory's ammunition supply (T 841, 848-849).

Coombs analyzed People's Exhibit 45, the bullet recovered from Mateo's body.

There was rifling on that bullet - nine land. groove impressions with a left twist, meaning there

were nine grooves cut into the barrel to create the nine groove impressions and the nine land

impressions, and the direction of twist in the barrel was to the left. Coombs determined that

the bullet was in a class of ammunition that includes "380 auto." People's Exhibit 45 and the

bullet generated by the test fire share the same rifling characteristics commonly found in Hi-

Point pistols. Coombs also examined People's Exhibits 40, 4I, 42, and 43, which she

determined to be .380 caliber cartridge cases, and which shared class characteristics: parallel

breechface marks; hemispherical firing pin impressions with circular marks within them; and

extractor marks in the three o'clock position, and no d.istinct ejector marks. She concluded that

People's Exhibit 42 had been fired from the Hi-Point pistol that was submitted to the

laboratory as evidence in this case, and produced a report to this effect on April L4,2016,

which, upon review by the supervisor of the laboratory's firearms section, Bert Pandolfino, was

transmitted to the Erie County District Attorney's Office (T 850-858).

Coombs acknowledged on cross-examination that she did not know where the gun

had been between August 7,2014 and JuIy 8,2015, when the Lancaster Police Department

submitted it to the laboratory. She could not say whether the magazine that was in the gun

was the original equipment, or that whoever loaded the gun on or about August 7,20I4had

touched the magazine. The firing of four shots from that weapon would not typically cause the

26

handle, the trigger, or the magazine to get hot, though the cartridge that falls to the ground

after a shot is fired may be warm to the touch. Coombs was not aware of any requests for DNA

analysis of the gun or any of its equipment, but, as a firearms examiner, is not involved with

such requests (T 861-867).

Forensic biologist Jodi Luedemann testified that many variables affect whether

and how much DNA gets transferred to an object via touch, including one's tendency or lack

thereof to shed DNA, or skin cells, and how oily one's skin is. Simply point, one may touch an

object without leaving DNA on it. DNA deposited on an item can be removed, such as by

bleach or another cleaning agent. An object such as a pen that passes through many hands

may lose some of its handlers'DNA along the way through transference; a handler may, simply

by touching the object, collect some or all of the DNA of a previous handler. Frequently,

laboratory personnel will encounter a mixture of DNA on an object - DNA from multiple

people. As time passes and more people handle an object, the DNA of a more distant handler

may become harder, or even impossible, to find (T 868, 872-875).

Luedemann swabbed the handgun recovered in this case, People's Exhibit 79, on

July 15, 20L5, before it was test fired. There was no magazine with the gun when she swabbed

it. Magazines are not typically swabbed at the laboratory; historically, swabbing them has

yielded poor results. Cartridges are also generally not swabbed due to their small size and the

damaging effect of heat on any DNA that might have been left on them (T 873-884).

A genetic profile was obtained from the swabbing of the handgun that consisted

of a mixture of DNA from four people, at least one of whom was a male. The major DNA profiIe

was of a male individual and matched the DNA profiIe from a cup abandoned by David

27

Diesenbruch. Then, Luedemann compared a known buccal sample from defendant with the

mixture of genetic material obtained from the gun. Defendant was excluded. as a contributor

to that material (T 884-886).

Luedemann also analyzed cigarette butts retrieved in this case and obtained

genetic profiles from them. There were mixtures on two of the butts and single profiIes on the

other two. One of the single profiles belonged to an unknown female. Petitioner meanwhile,

was excluded from all of the cigarette butts. Mateo was also excluded as a contributor to the

genetii material on all of the cigarette butts based on his known sample. He was the source

of the genetic material obtained from the piece of fence submitted to the laboratory (T 886-888).

On cross-examination, Luedemann testified that the piece of fence tested negative

for blood, meaning that the DNA Mateo had left on it might have been from skin cells or sweat,

or both. She could not say whether petitioner had or had not touched the gun (T SS8-SS9, 900).

28

POINT ONE

PETITIONER'S CHALLENGE OF THE TRIAL COURT'S

REFUSAL TO DELIVER AN INTRA-RACIAL

IDENTIFICATION CHARGE TO THE JURY IS NOT OF

FEDERAL CONSTITUTIONAL DIMENSION. THE ABSENCE

OF THAT CHARGE DID NOT DEPRIVE PETITIONER OF A

FAIR TRIAL.

Petitioner is Hispanic. The People's main witnesses, those present during the

shooting, were also Hispanic. When these witnesses were shown photographs of potential

suspects, they did not select petitioner but indicated that another man, Michael Soto,

resembled the man they saw that day.

Without more, this fact would naturally raise concerns of a wrongful conviction.

Petitioner maintains that the threat of such injustice compelled the trial court to charge the

jury that it may ascribe special importance to the fact that members of his own race selected

a different individual as the possible shooter. As will be seen, providing such a charge was not

only needless but would have raised the specter of serious unintended consequences. The proof

before the jury was much stronger than petitioner imagines, however, making the present

debate largely academic.

The centerpiece of petitioner's challenge below of the sufficiency of the evidence

was that the People's witnesses could not identifu the man with the gun who had run up the

driveway from 347 Herkimer Street. Two of those witnesses, Pedro DeJesus and Christina

Acosta, selected a person named Michael Soto from, respectively, a photo array and a large

compilation of photographs. On top of this, petitioner contends that the witnesses' descriptions

of the people they saw immediately after the sound of gunfire conflicted with one another. Add

29

to this petitioner's exclusion as a source of genetic material collected from the gun, as well as

from cigarettes collected from the scene, and what remained, according to him, was a case that

was starved for evidence - terminally circumstantial - and which failed to justifu the verdict.

This case was, as the prosecutor rightly observed in summation, "a building

process" (T 979). When that process was completed., the proof of petitioner's guilt was

compelling. Of course, the People's witnesses could not have been expected to identifir

petitioner from photographs, much less confidently so, when mostly they had gotten only a

fleeting or poor look at him or seen him only from behind - or, in Petez and DeJesus's case, had

likely not actually seen him at all, but Davila (T 403-404,515-524,437-44O,550-554, 732-737).

But the witnesses' descriptions of the shooter accorded. well with descriptions of petitioner by

those acquainted with him: Moreno mentioned the ponytail; Perez, that he was sort of skinny

with three or four inches of blond hair in the back; DeJesus, that he was thin, light skinned,

and of medium height - five six or five seven; Roberto Mitchell, that he had a gold ponytail;

Vellon, that he was skinny with a yellow ponytail; Davila, that he had a gold ponytail;Acosta,

that he was of medium height and had a blond mullet, or "a chunk piece of hair on the bottom."

None of the photographs from which selections were made showed the distinctive feature by

which the person with the gun was most consistently described; none of them showed anyone

from behind (T 403, 428,508-512, 57 4, 628-630, 696, 732-737 , 820-824).

As to the claimed identifications of Soto, there were no actual - certainly no

confident - identifications but only tentative or qualified selections (T 581-584, 597-599).

Petitioner suggests Soto should have been the target of the police investigation, but recall that

Acosta also selected Orlando Colon from among the photographs. The witnesses were, in their

30

own words, simply pointing out individuals whose features resembled who they had seen that

day - again, mostly from behind, or only momentarily. Their supposed identifications of Soto

were mostly qualified suggestions.

The evidence of petitioner's guilt is spread widely throughout the testimony ofthe

People's many witnesses and is merely summarized here. The phone records, People's Exhibits

47 and 48, established the phone contact between Mateo and petitioner, who had exchanged

numbers the night before Mateo's killing; Vellon testified to having driven petitioner to a

Iocation near the scene of the kiiling on August 7tln and that, some thirty minutes later,

petitioner entered the yellow truck with gun in hand, refusing Vellon an explanation for the

gun (T 627). The truck they were riding in, Vellon's father's yellow Ford, became an important

piece of proof: Perez testified that as she was driving away from the scene after the gunshots,

it yielded to her as she approached it (T 550-554). This explains why Perez had not seen

petitioner running up the driveway, but probably Davila; petitioner had already raced to and

entered the yellow Ford, which Vellon was trying to navigate away from the scene as Perez was

hurrying herself away (T 628-629, 654). Nor should it be overlooked that in August 20!4,

petitioner had occasionally been staying at 347 Herkimer, the residence of Lucille Gonzalez

and Felipe Gonzalez, his cousin and uncle, and Davila (T 426-427). Neither Lucille nor Felipe

Gonzalezcooperated with police during their investigation ofthe shooting (T 557-560,571-572).

Davila's testimony had petitioner at the scene, standing on the back porch waiting

for his friend, just moments before the shooting (T 437-440). His testimony made no mention

of anyone else inside the house but Lucille, Felipe Gonzalez and himself. Not only that, he

positively testified that before he went inside, nobody was in the backyard besides petitioner

31

(T 436-437). Deborah Brooks corroborated testimony placing petitioner at the scene,

particularly Vellon's, in her account of seeing a yellow truck begin moving after gunshots

sounded and an armed man motioning toward it and hurriedly entering it (T 666-671).

DeJesus had seen the man with the gun run up to the victim, aim the gun at him, utter in

Spanish, "I told you I was going to kill you," and run toward Delavan Street (T 692-695).

Finally, Davila testified that earlier the day of the shooting, he saw the green van

pull up near 347 Herkimer Street and petitioner walk up to the van. Petitioner was arguing,

in Spanish, with one or both of the van's occupants about drugs. Before d.riving off, the male

in the van said that he would return; petitioner said that he would wait for him. Petitioner

went to the backyard, where Davila would see him, alone, moments before the crime (T 433435).

There was more evidence than this, and this Court is encouraged to revisit the

facts rehearsed above in order to gain a fuller picture of the proof, and of the People's

painstaking "building process" that resulted in the jury's verdict. This was a circumstantial

case, but the many elements of the witnesses'testimony combined to make it a strong one

-

much stronger than it might at first have appeared.

Proof aside, petitioner's challenge of the refusal to deliver an intra-racial

identification charge is not of federal constitutional dimension. While this Court "has

recognized the inherently suspect qualities of eyewitness id.entifi.cation evidence" (Wathins u.

Sowders,449 U.S. 341, 350 [1981]), and - in a footnote to a dissenting opinion by Justice

Blackmun - acknowledged certain studies'finding that cross-racial identifi.cations "are much

less likely to be accurate than same race identifications" (Arizona u. Youngblood, 488 U.S. 51

32

[1988], Fn. 8, citing Rahaim & Brodsky, Empirical Evidence versus Common Sense: Juror and

Lawyer Knowledge of Eyewitness Accuracy, 7 Law and Psych. Rev. I,2179821), whether and

how to deliver cross-racial identification charges has been confined to state jurisprudence. The

New York State Court of Appeals has recently held that when in criminal cases identification

is an issue, and the identifiring witness and defendant appear to be of different races, "upon

request, a party is entitled to a charge on cross-racial identification." People u Boone, 3O

N.Y.3d 52I, 526 (20L7). Significantly, undergirding the court's holding was a variety of

published stud.ies showing that the challenges of identification across races were not only real

and demonstrable, but also unappreciated by many, even a majority, ofjurors surveyed. Boone,

30 N.Y.3d at 529. The difficulty unique to cross-racial identifications has achieved in New

York criminal courts the status of a judicially-noticed fact that demands, where relevant, the

giving of a jury charge upon a party's request as a matter of d.ue process.

In contras t, an intra-racial identification charge, one which would. have invited

jurors to attach special import to the qualified selection of Michael Soto by the People's main

witnesses, lacks any of the foundation of studies and careful consideration that led the Boone

court to its conclusion on cross-racial identification charges. While it is logical to draw from

these same studies that, generally, more confidence can be had in an intra-racial than a cross-

racial identification, this greater confidence should be viewed not as infusing the identification

with some special value, but as preserving the mean. That is, in a factual vacuum all witness

identifications enjoy an equal footing. OnIy when certain facts are marshaled - the lighting

was poor, the glimpse was fleeting, the witness was without her glasses - does this equality

begin to erode. Likewise, if the studies are right, this equality erodes, in some degree, when

33

the identification is across races.

But what kind of intra-racial identification charge would be meaningful for a

deliberating jury? To advise a jury that an intra-racial identification generally deserves

greater confidence than a cross-racial identification is merely to tell it that the intra-racial

variety, whatever its problems, lacks the unique type of problem associated with identifications

across races. Such a charge would constitute a truistic addition to a cross-racial identification

instruction, a different but extraneous way of telling the jury that it must identify some other

fact or facts besides race to treat this identification differently from all the others existing in

an informational vacuum.

Yet, if such a charge were to find its footing in due process, it would have to be

crafted extremely carefully to prevent the benefitted party from netting a windfall - or, put in

terms that would not induce, even subtly, the jury to aband.on fastidious and objective scrutiny

of the identification in terms of traditional and commonsense considerations like distance,

time, lighting, attention level, et cetera.

But what if a prosecutor were to seek an instruction as to the identifications of

his Hispanic witnesses of a Hispanic defendant? Should the People be denied the benefit of a

judicially-noticed fact that the intra-racial nature of their witnesses' identifications of the

defendant makes them more trustworthy than if they had been cross-racial in nature?

Finally, it bears noting that the claimed identifi.cations of Soto were more

qualified selections than true identifications. The witnesses expressed uncertainty when

pointing out Soto, indicating that he resembled the man they saw. And this raises another

question: Would tentative selections of a defendant by prosecution witnesses effectively be

34

bolstered by the giving of an intra-racial identification charge? Invariably, those criminal

defendants tentatively identifi.ed would. claim so.

For the reasons stated above, the refusal to give an intra-racial identification

charge does not implicate federal due process considerations. If anything, mandatingprovision

of such a charge would invariably create problems affecting due process and the fairness of

trials - for both parties.

35

POINT TWO

TRIAL COUNSEL'S REPRESENTATION WAS EFFECTIVE

UNDER THIS COURT'S STANDARD ANNUNCIATED IN

STRICKLAND V, WASHINGTON. NEW YORK STATE'S

..MEANINGFUL REPRESENTATION' STANDARD

COMPORTS WITH THIS COURT'S STANDARD.

Petitioner asserts that trial counsel provided ineffective representation by

informing jurors during voir dire, his opening and closing statements that he was involved in

drug dealing; failing to oppose the prosecutor's introduction of "unsworn expert testimony"

during trial; and failing to object - or object properly - to improper summation remarks and

other alleged missteps by the prosecutor during the trial. Contra petitioner, trial counsel's

advocacy satisfied the state and fed.eral standards of effective representation.

Among his most serious criticisms of trial counsel was the repeated references to

his involvement in drug dealing (T 358, 392, 939-940). As to these references, petitioner

cannot, on this record, overcome the presumption that they were part of a sound trial strategy.

Strickland, u. Washington,466 U.S. 668, 689 (1934). Indeed they were: It is commonly known

that drug dealers risk violent death at the hands of trade competitors or dissatisfied buyers.

Presenting defendant as a dealer effectively assigned him to a particularly endangered class

of people, afact which harmonized with trial counsel's portrayal of him as having fled in fear

or confusion from where the actual shooter had struck (T 940). Trial counsel appears to have

considered this stratery necessary to counteract the testimony of Felix Vellon, which placed

defendant at the scene and depicted him as having hurried back to VeIIon's vehicle, gun in

hand, just after the shooting (T 620-630).

36

Another supposed failure of trial counsel lay in a failure to object to Erica Coombs'

testimony that laboratory supervisor Bert Pandolfini had agreed with her findings concerning

the murder weapon (T 859). This failure to object was inconsequential: Coombs had just

testified that the report of her findings had to be reviewed by a qualified analyst - Pand.olfini,

in this instance - before it could be sent out. The report was sent out; the prosecutor had it and

was questioning Coombs about it on direct examination. By simple deduction, Pandolfini must

have reviewed the report and agreed with its findings. The jury needed no help recognizing

the fact. There was nothing to object to.

Petitioner cites the absence of objections to the prosecutor's summation remarks

he deems improper. In fact, the prosecutor's summation constituted fair commentary on the

proof elicited during trial. Petitioner suffered no prejudice from trial counsel's silence during

that stage . See Strichland, 466 U.S. at 669.

Meanwhile, trial counsel vigorously pursued a strateg5r of und ermining confrd.ence

in the police investigation and the handling of leads. This strategy was coherent and likely the

most powerful available, if ultimately unsuccessful, because of the photographic selections of

Michael Soto by two of the People's witnesses. Trial counsel's strategic choices resulted from

professional judgment and must be given deference . Id,. at 68I.

Petitioner also claims that New York State's standard of review for claimed

ineffective assistance of counsel cases, whether the representation was "meaningful" when

viewing the case in totality, violates this Court's Stricklond standard. People u. Baldi, 54

N.Y.2d I37, I47 (1981). Besides the New York standard's absence of a prejudice.prong, his

main criticism of it seems to involve its supposed tendency of overlooking serious but isolated

37

failings by trial counsel in favor of an overly-broad outlook on his or her representation.

Given that trial counsel's representation satisfied the Strichland standard, this

claim need not be resolved here. AII the same, New York's standard, while different from the

federal standard, is more favorable to criminal defendants: In New York, "even in the absence

of a reasonable probability of a different outcome, inadequacy of counsel will still warrant

reversal whenever a d.efendant is deprived of a fair trial." People u. Honghirun,2g N.Y.3d 284,

289 (2017), quoting People u. Caban, S N.Y.3d 143, 155-156 (2005). Under both the federal and

state standard, a criminal defendant must "overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy." Honghirun,

29 N.Y.3d at 289, quoting Strichland, 466 U.S. at 668. In fairly recent years, New York's

standard has approximated the federal stand.ard further - particul arly Strichland,'sprejudice

prong. In People u. Turner (5 N.Y.3d 476, 481[2005]), the Court of Appeals held that despite

an otherwise sound performance, trial counsel will be deemed ineffective for neglecting to

advance a "clear-cut and completely dispositive" claim.

In this case, trial counsel met both the state and federal standard for effective

representation. His representation met an objective stand.ard of reasonableness and resulted

in no prejudice to petitioner. Additionally, those two standards are much closer than petitioner

contends, with New York's offering an even more favorable review for criminal defendants than

what Striclzland establishes.

38

POINT THREE

THE TRIAL COURT CORRECTLY ADDRESSED A BRADY

VIOLATION BY THE PROSECUTION, ENSURING THE

ABSENCE OF PREJUDICE TO PETITIONER.

Petitioner claims that the prosecution not only committed a Brady violation but

also circumvented the trial court's ruling, irretrievably prejudicing the defense. However, the

trial court correctly addressed the prosecution's lapse and ensured in its remedial ruling that

any potential prejudice to petitioner was eliminated..

On the day jury selection was to begin, the defense voiced concerns over certain

information they discovered. when the prosecution provid.ed d.iscoverable material. The

information related to identification procedures of which the defense had. not, as they should

have, been fully apprised. The details would not aII be provided until after the trial was

adjourned. The materials contained information favorable to the defense and which should

have been recognize das Brady material-namely, police-arrangedphotographic identifications

by certain witnesses of people other than petitioner.

After extensive discussion about the nature of the withheld material (Petitioner's

Appendix, Exhibit J), the trial court fashioned a remedy. Noting first that "much of the

potential prejudice to [petitioner] has been cured by the adjournment of the trial and the

release of the materials," it then concerned itself with "ensur[ing] [petitioner's] constitutional

right to a.fair trial" (Petitioner's Appendix, Exhibit I.D. The principal relief consisted in the

trial court's preclusion of the prosecution from asking the relevant witnesses, if called, to make

an in-court identification on its direct case (Petitioner's Appendix, Exhibit N).

39

Contra petitioner, at no time during the course of the trial did the prosecution

circumvent or violate the trial court's Brady violation remedy. The prosecution was 'not

prohibited from using or referring to the photographs, but only from eliciting in-court

identifi.cations of petitioner from the subject witnesses of the Brady violation. The prosecution

suffered the penalty for its oversight, but the trial was adjourned so that the defense could be

made aware of all the materials in question. The possibility of prejudice was eliminated by the

trial court's correct handling of the matter

40

CONCLUSION

THE PETITION FOR A WRIT OF CERTIORARI

SHOULD BE DENIED IN EVERY RESPECT.

Dated:

Buffalo, New York

January 16,2020

Respectfully submitted,

JOHN J. FLYNN

Erie County District Attorney

N,fu,l\

DONNA A. MILLING*

MICHAEL J. HILLERY

ERIE COUNTY DISTRICT ATTORNEY S OFFICE

25 Delaware Avenue

Buffalo, New York I42O2

(716) 858-2448

Donna. milling@erie. gov

Attorneys for Respondent

*Counsel of Record