Petition for Writ of Certiorari — Bruce S. Myles, Petitioner v. New York

Supreme Court briefMay 10, 2025

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IN THE

SUPREME COURT OF THE UNITED STATES

Bruce Myles

FILED

MAY 10 2025

— PETITIONER

(Your Name)

vs.

State Of New York

— RESPONDENTS)

ON PETITION FOR A WRIT OF CERTIORARI TO

New York State Court Of Appeals

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

____ Bruce Myles______

(Your Name)

Attica Correctional Facility , P.O. Box 149

(Address)

Attica , New York

(City, State, Zip Code)

-12 ~i t

(Phone Number)

14011________ _

j

QUESTIONS) PRESENTED

1. WHETHER THE COURT VIOLATED DUE PROCESS WHEN THE PROSECUTOR WAS

ALLOWED TO ACT AS AN UNSWORN WITNESS?

ANSWER BELOW: the trial court did not consider this issue.

2. WHETHER COUNSEL WAS INEFFECTIVE IN VIOLATION OF SIXTH AMENDMENT WHEN

HE FAILED TO INVESTIGATE AND OBJECT WEN NECCESARY?

ANSWER BELOW: the trial court did not consider this issue.

3. WHETHER MR. MYLES’S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE

COURT ALLOWED TM TO TESTIFY WHEN HE LACKED COMPETENCY?

ANSWER BELOW: the trial court permitted his sworn testimony.

/ LIST OF PARTIES

J/j All parties appear in the caption of th<e case on the cover page.

[ ] All parties do mot appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is thesubject of this

petition is as follows:

'

OPINIONS BELOW... .............,..:...i..............iA...?................1

JURISDICTION........ ■.............................^.„.i;.....^.;..„..

f

’

■-

" \.................

”

CONSTITUTIONAL ANO STATUTORY PROVISIONS INVOLVED.................................

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT.....L.;

CONCLUSION........

.......................

;......

..1.....................

.

INDEX TO APPENDICES.

APPENDIX A

on March 17,2025)

tonr OF APPEALS OF NEW YORK (denied review

■

SUPREME COURT APPELLATE DIVISION 4 TH DEPT

(affirmed conviction on NOV. 15,2024)

appfnhsy r

APPENDIX C

APPENDIX D ' •

APPENDIX E

APPENDIX F

'

TABLE OF AUTHORITIES CITED

OASES

V-, t

STATUTES AND RULES

OTHER

page number

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

to

[ ] reported at

______________________

j or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

- [ ] reported at

'

:________________ ; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

jxf For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix A . to the petition and is

[ ] reported at

Ms'

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the ______ ■

t I

appears at Appendix Q to the petition and is

_

[ ] reported at _ _

• .

__

_; or,

[ ] has been designated for publication but is not yet reported; or,

is unpublished.

1.

court

to

JURISDICTION

[ J For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was__ ___________ •

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

:

____ , and a copy of the

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including(date) on

i_________ (date)

in Application No. A.

The. jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix %

[ ] A timely petition for rehearing was thereafter denied on the following date:

;

, and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on(date) in

Application No.

A '

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

•' CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

BERGER V. UNITED STATES, 55 S.CT. 629...

....... 1

BETTS V. BRADY, 316 U.S. 455,476,62 S.CT.1252,1263,86 L.ED 1595

(1942)..1.....

.........fi

HERRING V. STATE OF NEW YORK, 95 S.CT. 2550....

.1

OHIO V. CLARK, 135 S.CT. 2173.......................

8

PEOPLE V. ALICEA, 37 NY2d 601,604 [1975].. .............2

PEOPLE V. ALMFTHOKY, 9 A.D. 3d 882,833 [4th Dept 2004]..2,3

PEOPLE V. BAILEY, 58 NY2d 272,277 [1983].........

1

PEOPLE V. BALDI, 54 NY2d 137,146 [1981]

4

PEOPLE V. BENEVENTO, 91 NY2d 708,712 [1998]..- . . -.. .4,7

PEOPLE V. BROSNAN, 32 NY2d 254,262 [1973]....,...

2

PEOPLE V. CARLSON,184 AD3d 1139,1142 [4th Dept 2020]....1

PEOPLE V. FISHER,18 NY3d 964,966 [2012].........

..2

PEOPLE V. GETMAN, 199 AD3d 1318,1321 [4th Dept 2021]....2

PEOPLE V. GRIFFIN, 125 AD3d 1509,1512 [4th Dept 2015]...2

PEOPLE V. KALICKI, supra..

......

9

•PEOPLE V. KURTZ, 51 NY2d 380,384 [1980]

......

3

PEOPLE V. LOVELLO, 1 NY2d 436,438-439 [1956].....

2

PEOPLE V. McCARTY, 221 A.D. 3d 1360,201 N.Y.S.3d 524 2023 N.Y. slip op.

06173.---- --------- ----------------- ----------- 9

PEOPLE V. MERRTL, 60 AD3d 1376 [4th Dept 2009].....

8

PEOPLE V. MORALES, 80 NY2d 450,452-453 [1992]

.8

PEOPLE V. MOTT, 94 AD2d 415,419 [4th Dept 1983].,

3.

PEOPLE V. MOYE, 52 A.D. 3dl.

..

1

PEOPLE V. MYLES, 232 A,D. 3d 1295.

1

PEOPLE V. NISOFF, 36 NY2d 560,566 [1975]....

.... 8

PEOPLE V. OATHOUT, 21 NY3d 127,128 [.2013].*.,......

4,7

PEOPLE V. OLIVERAS, 21 NY3d 339,346-347 [2013]

4,5

PEOPLE V. POTTINGER, 156 AD3d 1379,1380 [4th Dept 2017].4,5

PEOPLE V. PRESHA, 83 AD3d 1406,1408 [4th Dept 2011]..*..2

PEOPLE V. RANUM,122 AD3d 959,960 [2nd Dept 1986]

8,10

PEOPLE V. ROSE, 223 A.D.2d 607,637 N.Y.S. 2d 172. ......9

ATTACHMENT CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

PEOPLE V. ROWELL, supra..... .................... .. • 9

PEOPLE V. SWEET, 79 AD3d 1772 (4th Dept 2010]........ 4

PEOPLE V. WRIGHT* 25 NY3d 769,7.79 [2015]............. 4,7

STRICKLAND. V. WASHINGTON, 104 S.CT. 2052............. 4

U.S. Vi CRONTC, 104 S.CT. 2039...................... 6

STATUTES

CPL 30.30........... ,..... ..... ........... .......5

CPL 30.30 [5]........................................................ 5

CPL 60,20....... ..... ........... ...... ........... 8,9,10

CPL 60.20 [2]. *........... ........................ 8»9

CPL 245.50 [1-A]...,............................ ...5

STATEMENT OF THECATE

■

INITIAL PROCEEDINGS

On December 1, 2021, prior to indictment, the People supplied a

certificate of compliance (A-ll-39). The people indicated they provided

defense counsel with discovery through an external hard drive and email

correspondences (A-ll). Concerning a witness list, the People named all

individuals listed in discovery, and stated that "a more truncated list may

be provided" (A-12). Since the certificate of compliance was provided prior

to indictment, the grand jury minutes were not provided (A-12).

On or about February 10, 2022, the Onondaga County Grand Jury returned

Indictment No. 2022-0091-1, charging Mr. Myles with the crimes of Murder in

the First Degree, Murder in the Second Degree (2 counts), Burglery in the

First Degree, Criminal Possession of a Weapon in the Second Degree, and

Tampering with Physical Evidence (A-8-9). The Indictment alleged Mr. Myles

unlawfully entered 159 Croly Street, Apartment 1, and shot Shabriah Gainey

and Julian Mansaw causing their death (A-8-9). The Indictment further

alleged that after the killings, Mr. Myles attempted to conceal the firearm

used in the offense by discarding it into Onondaga Creek (A-9).

The trial court arraigned Mr Myles on Indictment No. 2022-0091-1 on

February 22, 2022 (Arraignment of 2/22/22, pp. 2-5). Defense counsel entered

a not guilty plea (Arraignment of 2/22/22, p.3).

Defense counsel submitted a motion on April 6,2022 seeking inspection of

the grand jury minutes (A-41-47). The People did not object to such review

(A-48). The People moved for Mr. Myles's palm prints and saliva for testing

(A-50-55).

During the proceedings of April 18, 2022, the trial court requested the

People to provide it with the grand jury minutes for its review (Proceedings

of 4/18/22, p.2). It also ordered the taking of a buccal swab from Mr. Myles

for the purposes of developing his DNA profile (A-86; Proceedings

4/18/22,p.4). On May 5, 2022 and June 3, 2022, the trial court informed the

parties that it was still reviewing the grand jury minutes (Proceedings of

5/5/2022, p. 2;Proceedings of 6/3/22, p. 2).

ATTACHMENT STATEMENT OF THE CASE

_

In two pro se letters to the trial court seeking bail which

was never granted Mr. Myles maintained his innocence of the

crimes charged (A-87,89-91). He also denied having an intimate

relationship with Shabriah Gainey, asserting instead they were

close friends (A-89-91).

The trial court determined that the grand jury minutes were

sufficient in all respects (A-88; Proceedings of 6/29/22, p. 2;

Proceedings of 9/7/22, p. 2).

-At proceedings of November 7, 2022, Mr. Myles contended that

he never waived his right to a preliminary hearing or to testify

at grand jury (Proceedings of 11/7/22, p. 5). Defense councel

declined to respond to Mr. Myles's claim, which the trial court

noted for the record (Proceedings of 11/7/22, p. 5).

On December 6, 2022, defense Counsel requested to limit the

people's shell casing expert's testimony (A-92-147). Defense

counsel suggested prohibiting the People from using language like

"sufficient agreement" and

"consistant with" and instead

testifying that the "firearm cannot be ruled out as a source of

the shell casings" (A-93).

During the proceedings of December 20, 2022, the trial court

instructed the People to provide a reply to defense counsel's

motion (Proceedings of 12/20/22, p. 3). Defense counsel sought

police disciplinary records, which the People indicated they

would provide (Proceedings of 12/20/22, p. 5).

The People, on January 4, 2023, denied that they would seek

elicit testimony that the casings "match" the firearm, but an

opinion that the casings are "consistent" with the firearm in

question (A-148). On January 11, 2023 defense counsel maintained

that the firearm examiner should be precluded from using the word

"match" (Proceedings of 1/11/23, pp.7-10). The trial court denied

the motion, reasoning that defense counsel could explore the

issue on cross-examination (Proceedings of 1/11/23, p. 10).

The People supplied a supplemental certificate of compliance

on February 21, 2023 (A-150-155). The People did not provide ainy

explanation for the supplemental certificate (A-150-155). The

certificate of compliance included a more specific list of

witnesses (A-151-152). The People also revealed Giglio material

concerning

Detective

Breen,

Detective

Montalto,

Detective

LaLonde, Detective Merola, and Detective Kilburn (A-154).

Oh March 6, 2023, the trial court confirmed that there will

be no plea agreement (Proceedings of 3/6/23, p. 2). The People

denied the need for Monileux or Sandoval hearings (Proceedings of

3/6/23 pp. 2-3). The parties scheduled further proceedings to

determine whether TM, an 8-year old boy could be a sworn witness

at trial (Proceedings of 3/6/23, pp. 14-16).

An examination of TM’s competency to testify occured on March

9, 2023 (Proceedings of 3/9/23, p. 2). TM spelled his first and

last name; identified his age -- 8 years; identified his

birthday; indicated who he lived with-- his aunt; and stated

where he went to school (Proceedings of 3/9/23, p. 5).

TM stated that the truth was a "bad thing" but then said it

was a "good thing" (Proceedings of 3/9/23, p. 6). He identified a

lie as a "bad thing" (Proceedings of 3/9/23, p. 6). He reasoned

that it would be good to tell the teacher the truth so he would

not "get in trouble" (Proceedings of 3/9/23, p. 6). He understood

that when he promised to do something he had to do it

(Proceedings of 3/9/23, pp. 7-8). At first, he thought that

keeping a promise was a "bad thing" but then stated it was a

"good thing" (Proceedings 3/9/23 p. 8).

Following TM’s testimony, the People asserted that TM should

be a sworn witness (Proceedings of 3/9/23, pp. 17-18). Defense

counsel countered that while TM may understand the difference

between the truth and a lie, in his own life, he did not

understand the importance of an oath and what happens if you lie

in a courtroom (Proceedings of 3/9/23, p. 19). Defense counsel,

therefore, contended TM should only be permitted to testify as an

unsworn witness (Proceedings of 3/9/23, p.19). After a short

adjournment, the trial court ruled that TM could testify as a

sworn witness (Proceedings of 3/9/23, p. 20).

The People supplied the defense with a second supplemental

certificate of compliance on March 12., 2023 (A-156-157). The

People did not provide any. explanation for the second

supplemental certificate of compliance (A-156-157). The People

added that Cherish Love maybe called as a witness, and that she

has two prior criminal convictions (A-157). A third supplemental

certificate of compliance followed on March 13, 2023 (A-158^-159).

Again, the People did not provide an explanation for the need for

the supplemental certificate of compliance (A-158-159). In this

certificate of compliance, the People provided the defense with

the curriculum vitae of latent print analyst David Tate (A-159).

II. The Trial

A. Pre-Testimony Proceedings.

The trial commenced on March 13, 2023 (Trial of 3/13/23, p.

13; hereinafter cited to by volume [l-Il] and page number [#]).

Defense counsel confirmed that Mr. Myles waived his right to

be present during bench conferences (1-16-17). The parties

selected the jury (1-18-306). When voir dire commenced, the trial

court indicated that "21 [jurors] were in the box" (1-28).

Neither the trial court nor the clerk named the jurors or

provided them with a number (1-28). Juorors were then identified

sporadically by number, and/or last name, and/or first name (l28-95). At the conclusion of the panel, the parties then

exercised for cause and peremptory challenges based on number

exclusively, rendering it impossible to ascertain the identity of

the potential jurors discussed when exercising challenges (1-9598). Defense counsel disagreed with the trial court's for cause

denial of juror thirteen, and told the trial court, "[yjou're

forcing us to use all of our peremptories" (1-98). The trial

court also only named the jurors excused, and not the jurors

selected (1-99).

The trial court utilized the.same procedure during the voir

dire of the second panel (1-104-157). During this panel, only one

juror, juror number 2, was identified by name and number (1-106).

The rest of the jurors were only referred to by name (1-104-157).

Nevertheless, when the for cause and peremptory challenges were

announced, the attorneys exclusively used numbers (1-157-164).

During this panel, the trial court denied two for cause

challenges by the defense, but it was not possible to determine

which juror was challenged (1-158-159).

The third panel’s voir dire occurred in a similar fasion (I171-198). When the parties exercised peremptory and for cause

challenges, however, they used names as opposed to numbers,

rendering review at least possible (1-199-201).

The clerk called the fourth panel by name and number (1-205206). At the conclusion of jury selection, the trial court by

first name and first letter of last name, listed the jurors (I294-295).

The trial continued briefly on March 15, 2023 (1-301). The

trial court announced that juror #7 tested positive for COVID (I301). The trial court instructed the jurors to test and then

return to court the following day if their results were negative

(1-303).

The trial continued on March 16, 2023 (1-307). The parties

agreed to replace juror #7 with alternate juror #1, due to juror

#7's illness (1-307). The trial court supplied the jury with

preliminary instructions (1-308-326). The prosecutor gave his

opening statement (1-326-335). The prosecutor's opening statement

began from the point of view of the then 6-year-old TM and his

discovery of his mother, Shabriah Gainey and his "god dad" Julian

Mansaw, dead and covered in blood (1-326-327). Defense counsel

also provided an opening statement (1-335-349).

Prior to the March 20, 2023 trial proceedings, the trial court

noted that juror #5 reported ill, and as a result, the second

alternate juror replaced juror #5 (11-10, 16).

B. The People's Case

In September of 2021, Taykola Gainey's (People's Witness No. 3) sister,

Shabriah Gainey's lived at 159 Croly Street with TM (People's Witness No. 2),

her son (1-371). During that period of time, Shabriah dated Mr. Myles on and

off (1-372). Cherish Love (People's Witness No. 6) shares two children with Mr.

Myles (1-529). She stated that she met Shabriah Gainey through Mr. Myles on one

occasion. (1-529-530).

In September of 2021, Mr. Myles, stayed with his mother or at a hotel (I530). Mr. Myles was trying to find suitable housing because he just moved from

Queens and was approved for an apartment starting in October of 2021 (1-537).

Mr. Myles drove a white Toyota Camry (1-531).

On September 15, 2021, when TM was six years old, he heard loud noises that

caused him to wake up (1-366-367). After hearing the noises, he left his bed,

and hid in the bathroom (1-367). Eventually, he went into the livingroom,

turned on the lights, and saw his mom Shabriah Gainey, his "god dad" Mansaw,

and blood (1-368). As a result, he went outside and called for help, eventually

finding a person he knew who called the police (1-369).

At 3:36 A.M., on September 15, 2021, Officer Miller (People's Witness No.l)

responded to 159 Croly Stre'et due to a report of a shooting (1-351). When he

arrived at the address, which was an apartment building, he spoke to a man and

TM (1-352). TM explained that his mother was shot, and the apartment door would

be open (1-352). Miller and officer Lukaczik entered the apartment, observed

the bodies, and three shell casings (A-162-173; 1-353). He then cleared the

apartment to make sure noone else was present (1-353). Miller observed that the

main entrance door and back bedroom window were open (1-364).

Officers Demand (People's Witness No.4) and. Szakalski (People's Witness

No.8) responded to the scene as members of the crime scene unit (A-174;I378,11-19). They collected evidence and took photographs of the scene (A-175370;1-381-400,11-20). Evidence collected included clothes,projectiles,casings,

and Mansaw's identification card (1-401-404). The casings were .40 calibur (l402).

Szakalski dusted the scene for fingerprints and took DNA swabs (1-400, 414415, 427, 11-22). He did not recover any prints from the open window (11-2324). Szakalski collected latent lifts from the common hallway and entry door

(11-24). Demand took blood swabs from the interior hallway (1-423). Demand

acknowledged that the DNA swabs were never sent to the crime lab for further

testing (1-437).

Detective Breen (People's Witness No.5) spoke to the victim's families (I443). As a result of such conversations, Mr. Myles became a suspect (1-443).

He learned Mr. Myles drove a 2004 Toyota Camry (1-444, 450). Breen conducted

a video canvas of the area of the incident and Mr. Myles's mother residence.to

observe the movement of the suspect vehicle (1-445-450). He created a thirty

minute video clip of Mr. Myles's vehicle from the day of the incident (A-370567;1-451).

The video tracked Mr. Myles's vehicle traveling on September 14, 2021,

around the city of Syracuse before stopping at his mother's residence at 12:07

P.M. (1-456-457). At 1:19 P.M., the vehicle then traveled down South Avenue on

the south side of Syracuse before turning east on Brighton Avenue (1-458-459).

After viewing the vehicle on several other city streets, the vehicle eventually

backed into Mr. Myle's mothers residence around 2:20 P.M. (1-459-461). The

vehicle left Mr. Myles's residence again, traveling north on South Avenue, and

then returning south about 18 minutes later (1-462). The vehicle traveled on

South Avenue again, until it stopped at a liquor store at 3:03 P.M. (1-462464). According to Breen, the person who exited the vehicle and entered the

store appeared to be Mr. Myles (1-464).

After the liquor store, the vehicle returned to Mr. Myles's mothers

residence, before at 3:27 P.M., leaving the residence again (1-464). At this

time, the vehicle traveled to Eastman Avenue, where love lived (1-465). love

shares two children with Mr. Myles (1-465). At 4:47 P.M., Mr. Myles returns to

his mother's residence (1-465).

The vehicle did not move again until 8:07 P.M., when it traveled down South

Avenue (1-465). The vehicle was not picked up by video again until 8:45 P.M.,

on the east side of Syracuse at the Columbus Deli and Grocery (1-465). The

vehicle, at 9:08 P.M., traveled back toward South Avenue, until returning to

his residence at 9:12 P.M. (1-468).

At 10:53 P.M., the vehicle left Mr. Myles's mother residence and traveled south

on South Ave before heading eastbound on Colvin Street (1-469). It was picked up

again on South Ave and backed into Mr. Myles's mothers driveway at 11:30 P.M. (I469).

At 12:30 A.M., on September 15, 2021, the vehicle left the residence traveling

east, eventually traveling on Midland Avenue at 12:41 A.M. (1-469-470). the vehicle

then sat at a barbershop on Midland Ave for about 18 minutes (1-470). The interior

lights of the vehicle became illuminated, and one person was seen in the vehicle (I471). The vehicle, at 1:03 A.M., stopped on Fastman Avenue where Cherish Iz>ve lived

(1-471). Love explained, that Mr. Myles returned their daughter to her because she

kept Mr. Myles's mother awake (1-532). After Love discussed the matter with her

significant other, she allowed Mr. Myles to take a shower at her residence (1-533).

Mr. Myles text her around 3:30 A.M., thanking her for allowing him to use her shower

(1-535). Love responded by sending Mr. Myles a picture of their daughter (1-545546).

Around 2:00 A.M., the vehicle traveled east onto Brighton Avenue, before heading

to 81 North and 690 east (1-471-472). The vehicle took the Teall Avenue exit at 2:13

A.M. (1-472). Eventually, it traveled south on Westmoreland before it could not be

viewed, creating an. inference it stopped somewhere around Croly, Dakin, and

Wesmoreland streets (1-473).

Around 2:45 A.M., an unknown individual who the People speculate is the suspect

can be seen walking from the area where the vehicle was last seen (1-474). At 2:51

A.M., the person is walking from the direction of the parkinglot area between 159

and 171 Croly Street (1-475). Ihe individual wore a dark hooded sweatshirt, with the

hood up (1-475). Then, at 2:57 A.M., a unknown individual is seen running back

toward the area of Dakin and Wesmoreland (1-476). Detectives showed Love photographs

of the suspect, but she thought the suspect appeared shorter than Mr. Myles (1-551).

The vehicle was next observed passing a Sunoco gas station on Teall and Erie

Boulevard (1-478). It then entered 690 west, and eventually returned to Mr. Myles's

mother's residence (1-479). At 3:30 A.M., the vehicle moved from Mr. Myles's mothers

residence to a pass a bridge on South Avenue, and then did a U-turn by a grocery

store north of Onondage Creek (1-480-482).

At 3:39 A.M., an individual is seen waIking north on the east side of the

sidewalk on South Avenue (1-482). The person appeared to walk toward the creek, and

then returned to the view of the camera a brief time later (1-483). The individual

was not seen on any other COPS cameras despite one being present nearby (1-488).

During the investigation, Detective Breen acknowledged that detectives did not

look into Julian Mansaw’s actions prior to going . to Shabriah's residence at 9:48

P.M. (1-523). For example, Breen did not know what Mansaw did walking on Dakin

Street around 10:10 P.M. (1-523). They also did not know why Mansaw parked his

vehicle roughly three blocks away from 159 Groly Street (A-917-920, 949-956; 1-500505). Mansaw's cell phone was recovered from the scene, but Detective Breen did not

know if the details of his calls and texts were reviewed by detectives (1-521-523).

Lalonde claimed he tried: to analyze Mansaw's phone but could not access it due to

password issues (IV-9). Lalonde conceded that he did not obtain a call detail report

from Mansaw's phone number (IV-13-15).

Detective Lund (People's Witness No.7) spoke to Mr Myles's mother, learning

Mr. Myles's phone number—929-488-9405 (444,556,11-157). Officer Lalonde (People's

Witness No.12) used that phone number and Shabriah Gainey's, 315-204-0033, to

procure call detail records from only Mr. Myles's phone number for call details (IT158). Lalonde plotted the location of the cell phone using the Cell Hawk database

(A-776-846; LI-159).

Lalonde's plotting of the movement of Mr. Myles's phone was consistent with the

video evidence although never places Mr. Myles at the scene of the crime (11-163165). Between 1:04 A.M. and 1:38 A.M. there is call interaction where Mr. Myles made

about nine calls to Shabriah Gainey (11-165-166, IV-8-9). Mr. Myles also called

Cherish Ixjve around this time period as he was actually sitting outside of Love's

residence around this time period (IV-6).

Beginning at 2:12 A.M., there was a 54-minute activation period at the cell site

located at 1460 Erie Boulevard East (11-166). Another data activation period began

at 3:00 A.M. at the same cell location and around the same time video evidence

displays Mr. Myles's vehicle driving toward the 690 onramp (11-167). The cell phone

data, consistent with the video evidence, indicated Mr. Myles's vehicle then drove

to his mothers residence, arriving at around 3:08 A.M. (11-168).

Lalonde believed the homicide occured around 2:50 A.M. (II-169). Lund learned

that Mr. Myles purchased a bus ticket two days later on September 17, 2021 to

Columbus ,0hio at the time there was no warrant issued for his arrest (1-557). Love

explained that social media posts accused Mr. Myles of killing Shabriah and Julian

(I-548). Certain comments on Facebook seemed to be threatening (1-548-549). Mr.

Myles knew of such threats, and as a result, Mr. Myles moved back to his hometown

Columbus,Ohio (1-549).

On September 17, 2021, Detectives Breen and Szakalski assisted in a search for

Mr. Myles mother's home at 843 South Avenue (A-604-637; 1-498, 11-25). Mr. Myles's

vehicle was towed to the processing bay during the search (11-29). Breen suggested

that Lund and Lowville search under the South Avenue bridge for evidence (1-499).

Photographs were taken of the area under the bridge (A-568-603; 1-559). From the

east side of the bridge, Lund recovered .40 Calibur magazines and loose ammunition

(1-562-567,574). Lund acknowledged also observing black plastic bags in the area but

not collecting any of the evidence he admitted (1-562, 581-582).

Four days later, on September 21, 2021, Trooper Dovi (People's Witness No.9) and

other dive members searched in the creek for a potential firearm (1-568,576,11-6566). Dovi discovered a Smith and Wesson SD-40 calibur pistol (A-758-775; 11-67).

Detective Halsey (People's Witness No.10) placed the firearm in a paint can filled

with water to decrease possible corrosion (11-80). The firearm was not registered to

Mr. Myles and was reported as stolen (IV-11).

At that time, Halsey collected six live rounds of 40-calibur ammunition, two dark

colored plastic bags, and a cell phone (A-686-759; 11-82-94). Ihe dark plastic bags

were located in the grassy area around the creek (11-104). Halsey denied knowing

whether the bags had any evidentiary value but despite all of the other trash

including other plastic bags laying around decided to collect them two (11-116).

Another black bag was at the scene but not collected (A-988-989; 11-117). Lund

acknowledged that during that four-day period, neither he nor any other detective

secured the scene (1-576).

On September 22, 2021, Szakalski and others searched Mr. Myles's vehicle (A-638667; 11-30). Personal items and mail inside of the vehicle belonged to Mr. Myles

(I1-33). When Mr. Myles returned to New York from Ohio, Szakalski searched inside of

his luggage (1-568, 11-36-37). His luggage contained a driver's license that listed

Mr. Myles's height as 5 foot 11 inches (11-54, V-29).

Tn May of 2022, forensic examiner Fairchild (People's Witness No.11) recieved

fired shell casings, two plastic bags, and a handgun with a magazine (TI-127).

She did not conduct DNA analysis of the two plastic bags

based on instructions of the People (11-128,146). She swabbed

the fired shell casings but did not perform a DNA analysis of

the swab considering the shell casings were very small and a

smooth surface, rendering the procurement of DNA unlikely

(11-129).

Fairchild swabbed the handgun and magazines (11-129). No

DNA was detected on the handgun (11-130). A low level DNA

profile was obtained from the magazine, but not suitable for

comparison (11-131). The other gun magazines were swabbed,

and another low level DNA profile was obtained, but again, it

was not suitable for comparison (11-134,145). She did not

recieve a doorknob or chain lock to analyze (11-142).

Latent print examiner Kelly Kinder (People's Witness

No.13) recieved Mr. Myle's known prints (IV-45). She compared

such prints to several items and the only one that she could

develop a print that matched Mr. Myles was a plastic bag from

the unsecured scene at the creek (IV-49-56,72-74,103). She

made the match by taking a photograph of the latent print and

comparing the photograph to the known print of Mr. Myles (IV75). Kinder admitted that there were missing details from the

known print that were not present in the latent print (IV-9799). She could not tell when the latent print was deposited

on the bag (IV-101).

Kinder acknowledged that every time a person records their

fingerprint it will not be exactly the same (IV-58). Kinder

also conceded that two people can have very simular

fingerprints (IV-59). Kinder agreed that her comparison was

"somewhat subjective" (IV-62). Kinder admitted that a recent

study indicated that false positives occur in one of every

eighteen examinations on the high end, and one in twenty-four

examinations on the low end (IV-68).

Medical Examiner Monday (People's Witness No.14), On

September 16,2021, conducted the autopsy of Shabriah Gainey

(IV-115). She determined Shabriah Gainey suffered five gun

shot wounds, three to her back and two to her arm (A-849-856;

IV-115-121). Monday's examination also included a toxicology

report which indicated that Shabriah Gainey's BAC was .09 and

THC was present in her system (IV-122). Monday concluded that

Shabriah Gainey's cause of death was multiple gunshot wounds

(IV-122).

Monday

also

examined

Julian Mansaw

(IV-122).

She

determined Julian Mansaw suffered gunshot wounds to the

chest,abdomen,left arm, and left hand (A-855-864; IV-124129). Julian Mansaw's toxicology report did not produce

anything of significance (IV-130). She concluded that Mansaw

received ten gunshot wounds and his death was caused by the

multiple gunshot wounds (IV-130).

Firearms Examiner Harter (People's Witness No.15) recieved

the firearm associated with the instant case (IV-139). The

firearm and a magazine were contained in a paint can full of

water (IV-139). Harter identified the firearm as a Smith and

Wesson pistol (IV-140). The pistol contained a magazine with

a fiftenn round capacity (IV-140). The firearm came to her in

water to prevent corrosion (IV-141). Due to the concerns of

corrosion, she did not attempt to lift any latent prints from

the firearm (IV-142). Instead, she placed penetrating oil on

the pistol to stop the corrosion process (TV-142). Upon

further cleaning and drying, she determined the firearm was

operable (IV-143-144).

Harter did a comparison examination of a test-fired bullet

and a submitted bullet (IV-145,149). Her results were

inconclusive as to whether the bullets were fired from the

pistol (IV-149). She opined that the 12 fired cartridge cases

were fired from the submitted firearm (IV-151-152,V-21).

Harter acknowledged that her conclusions were subjective

and not based on a mathematical formula (IV-160). Harter

maintained that her analysis was still based on objective

principles (IV-160). Harter claimed that when she compared

items in this case, she relied on the breech face marks even

though there were different individual characteristics on the

shell (IV-164).

She admitted that the PCAST (President's Counsel of

Advisers on Science and Technology) report determined that

firearms examinations lacked foundational validity (IV-173).

She admitted that the PCAST report was critical of the AFTF,

theory of identification, which was the theory she utilized

in the instant case (V-6). Harter asserted that other reports

have discredited the PCAST report (V-12). She admitted,

however, that the AFTE board recognized the existence of a

cognitive bias in firearms examinations (V-14). Specifically

, influence can arise when an examiner is aware of outside

information

or

has

knowledge

of

another

examiner's

determination (V-15).

C. The Adjournment.

On March 21, 2023, the trial court explained that a third

juror had fallen ill (III-2). As a result, it would inquire

whether the jurors were available the following week after a

quarantine period to resume trial (III-2).

The parties agreed to a process by which the trial court

would question the remaining jurors as to their ability to

continue (III-5). During the inquiry, no jurors indicated a

problem with adjourning the trial (III-6-38). The trial then

recommenced on March 27, 2023 (IV-3).

D. Defense Counsel's Trial Order Of Dismissal.

Defense counsel requested a trial order of dismissal,

asserting that the People failed to provide sufficient

evidence of Mr. Myles's guilt of the crimes charged (V-31).

The trial court recognized the circumstantial nature of the

case but denied the motion (V-32).

E. The Defense.

Mr. Myles elected not to testify (V-33).

Paul Olszewski (Defense Witness No.l), a land surveyor,

used high definition laser scanning to estimate the height of

the unknown individual observed in the video walking on Croly

Street (V-44).

Olszewski used measurements for a pole,signs, and the

location of the recording device to determine that the person

was between 5 feet and 6 inches and five feet and 8 inches

tall (V-45,50-52,59-63,76). Olszewski acknowledged that his

estimation could be a "little bit" different if the

individual were standing straight as opposed to walking (V64). Olszewski denied any training in forensic videography

(V-69). The parties stipulated that Mr. Myles is 5 feet 9 1/2

inches tall (V-29,83).

F. Post-Defense Case Proceedings.

Defense counsel renewed their motion for a trial order of

dismissal, asserting that Mr. Myles could not be the person

on Croly because he is too tall (V-84). The trial court

denied the motion (V-85).

The parties engaged in a charge conference (V-86-91).

Defense counsel delivered a summation (V-95-130) followed by

the People (V-131-167).

The parties engaged in a charge conference (V-86-91). Defense

counsel delivered a summation (V-95-130) followed by the

People (V-131-167). During the People's summation, the

prosecutor used two different photographs on top of one

another with his computer creating a merged image (A-1016; V164,167). Defense counsel objected, asserting the prosecutor

was conducting an untestified experiment (V-164). The trial

court overruled the objection (V-164). Defense counsel

maintained his objection and asserted that such an arguement

made the prosecutor a witness (V-168). The trial court

maintained its ruling but ordered a screenshot of the merged

document be part of the record (V-169).

On March 29,

2023,

the trial court provided its

instructions of law (VI-7-40).

During deliberation, defense counsel sought a mistrial due

to the prosecutor's unsworn testimony during his summation

and his creation of a new exhibit (A-1016; VI-47). Defense

counsel maintained that the prosecutor's comments about the

photographs constituted unsworn testimony that demanded

cross-examination (VI-47-48). Defense counsel also emphasized

the height of the unknown suspect to the defense (VI-50).

The prosecutor denied providing unsworn testimony and

asserted that the use of the photographs was proper in

summation (VI-51-54). The trial agreed, relying on its

limited instruction prior to summations as instructing jurors

how to view closing arguements (VI-55).

The jury found Mr. Myles guilty of the crimes of Murder in

the First Degree, Burglery in the First Degree, Criminal

Possession of a Weapon in the Second Degree, and Tampering

with Physical Evidence (A-1022; VII-10-12).

III. Sentencing.

The trial court, on May 4, 2023, sentenced Mr Myles

(Sentencing of 5/4/23, pp. 2-21).. Mr. Myles maintained his

innocence and claimed that police planted evidence at the

creek (Sentencing of 5/4/23, p.17). Mr. Myles further

criticized the People for failing to test items of evidence

for DNA and fingerprints and failing to process the victim's

phones (Sentencing of 5/4/23, p. 17). The trial court

sentenced

Mr.

Myles

as

previously

indicated

(A-5-6;

Sentencing of 5/4/23, p. 21). Mr. Myles filed and served a

notice of appeal on May 4, 2023 (A-3-4).

IV. Post Conviction.

Supreme Court, Appellate Division Fourth Department of New

York Affirmed the direct appeal on November 15,2024.

Court Appeals of New York denied leave to the Court of

Appeals which was submitted on November 15, 2024 and was

denied March 17, 2025.

REASONS FOR

THE PETmON

POINT 1; THE COURT VIOLATED DUE PROCESS WHEN THEY ALLOWED THE PROSECUTOR

TO ACT AS AN UNSWORN WITNESS

A. The prosecutor's mission is not so much to convict, as it is to

achieve a just result (People v Bailey, 58 NY2d 272, 277 [1983]). It

must be stressed that "[pjrosecutors play a distinctive role in the

search for truth in criminal cases. As public.officers .they are charged

not simply with seeking convictions but also with ensuring that justice

is done" (People v Carlson, 184 AD3d 1139, 1142 [4th Dept 2020]).

Prosecutorial misconduct is "a prosecutor's improper dr illegal

act (or failure to act),’ esp. involving an attempt to avoid required

disclosure or to persuade the jury to wrongly convict a defendant or

assess an unjustified punishment." The’ lower court's decision was

erroneous and

an abuse of descretion when the. 4th Dept, appellate

division denied the direct appeal due to what they state as a "harmless

error" (People v Myles, 232 A.D.3d 1295). The prosecutor made an

improper power point in closing summationthat clearly prejudiced

defendant due to the circumstantial nature of the case to secure a

wrongful conviction. "It can hardly be questioned that closing arguement

serves to. sharpen and clarify the issues for resolution by the trier of

fact in a criminal case."(Herring v State Of New York, 95 S.CT.2550) The

lower court makes a habit to get around violating substantive and

procedural due process by using the term "harmless error."This has been

the lower courts scapegoat in ignoring the Fourteenth Amendment Of Our

Constitution Of The United States Of America."New York State Court Of

Appeals vacates a conviction and remand for new trial because the

prosecutor's conduct at trial amounted to an egregious violation of the

unsworn witness rule"(People v Moye, 52 A.D.3dl). The prosecutors in

criminal cases should not be treated as they are above the law. It is

impossible to say that the evil influence upon the jury of these acts

of misconduct was removed by such mild judicial action as it was taken.

The prosecuting attorney's arguement to the jury was undignified and

intemperate, containing improper insinuations and assertions calculated

to mislead the jury (Berger v United States 55 S.CT. 629).

1

ATTACHMENT POINT 1

The prosecution has a duty to act in good faith while giving his

opening statement and continues throughout his summation (People v Alicea,

37 NY2d 601,604 [1975]). A prosecutor exceeds the bounds of legitimate

advocacy where he or she improperly appeals to the fear and emotion of the

jurors (People v Presha, 83 AD3d 1406,1408 [4th Dept 2011]) or acts as an

unsworn witness by using his or her position and veracity to support their

case (People v Lovello, 1 NY2d 436, 438-439 [1956]; People v Getman, 199

AD3d 1318,1321 [4th Dept 2021]). Above all, the prosecutor is barred from

drawing irrelevant and inflammatory conclusions to prejudice the fact finder

against the defendant (People v Fisher, 18 NY3d 964,966 [2012]).

Prosecutorial misconduct warrants reversal where the conduct has

/caused such substantial prejudice to the defendant that he has been denied

due process of law (People v Almethoky, 9 AD3d 882,883 [4th Dept 2004];

/People v Mott, 94 AD2d 415,419 [4th Dept 1983]). Even where a trial court

provides curative instructions due to a prosecutor's conduct, the resulting

prejudice can overwhelm a defendant's right to a fair trial (People v

Griffin, 125 AD3d 1509,1512 [4th Dept 2015]). Where review of the record

illustrates less

than overwhelming

evidence of defendant's guilt,

prejudicial effect on the defendant may result from the slightest

impropriety (see People v Brosnan, 32 NY2d 254,262 [1973]).

In summation, the prosecutor used a photograph of Mansaw and a

photograph of the person they alleged was Mr. Myles leaving the scene of the

crime to create a merged image that was never introduced as evidence (A1016; V-164-165,167). Although the alleged suspect has never been identified

the prosecutor then argued because the unknown person alleged to be Mr.

Myles went to the brow line of Mansaw, that the person "could" be Mr. Myles

(V-164-165). The prosecutor's creation of new evidence and unsworn claim

that his evidence established that the suspect was the same height as Mr.

Myles constituted an improper not testified experiment and made the

prosecutor an unsworn witness (A-1016; V-165-167) (Lovello, 1 NY2d at 438t39; Getman, 199 AD3d at 1321). The claim was also imbued with the veracity

and position of the District Attorney's Office, prejudicing Mr. Myles's

right to a fair trial (A-1016; V-164-168) (id.).

2

ATTACHMENT POINT 1

B. Here, the prosecutor’s opening- statement needlessly began from the

point of view of 6-year-old TM'-s discovery of his mother and a man he called

his "god dad" dead and covered in blood (1-326^327). The prosecutor’s

portrayal of such evidence improperly appealed to the emotions of the jurors

as opposed to providing the jury with the nature of the charges and the

facts that supported such charges (Presha, 83 AD 1406,1408; see People v

Kurtz, 51 NY2d 380,384 [1980]).

These instances ofmisconduct, especially, where the evidence was less

than overwhelming were so egregious and caused Mr. Myles such substantial

prejudice that he was denied due process of law (A-1016; 1-326-327; V-164168) (Almethoky, 9 AD3d at 883.; Mott, 94 AD2d at 419). Therefore, it is

respectfully submitted that the judgement of conviction should be reversed,

and a new trial granted (id.).

3

POINT 2 s COUNCEL WAS INEFFECTIVE IN VIOLATION OF THE SIXTH AMENDMENT WHEN HE

•_ FAILED TO INVESTIGATE IN/OR OBJECT TO...

A. Defense councel's aggregate errors deprived Mr. Myles of meaningful

representation (People v Baldi, 54 NY2d 137,146 [1981]; see People v

Oathout, 21 NY3d 127,128 [2013]). Due process is ’’the conduct of legal

proceedings according to established rules and principles for the protection

and enforcement of private rights, including notice and the right to a fair

hearing before a tribunal with the power to decide the case”.

Tn considering a claim of ineffective assistance of councel, a Court

must determine, without the benefit of hindsight, whether the evidence, law,

and circumstances of the case, viewed in the totality, reveal that the

attorney provided meaningful representation (Oathout, 21 NY3d at 128; People

v Benevento, 91 NY2d 708,712 [1998]). The standard ineffective assistance

”is ultimately concerned with the fairness of the process as a whole,rather

than its particular impact on the outcome of the case” (Benevento, 91 NY2d

at 712; see People v Wright, 25 NY3d 769,779 [2015]).

"The court agreed that the Sixth Amendment imposes on councel a duty to

investigate, because reasonably effective assistance must be based on

professional decisions and informed legal choices can be made only after

invesigation of options. The court observed that councel's investigatory

decisions must be assessed in light of the information known at the time of

the decision, not in hindsight, and that [t]he amount of pretrial

investigation that is reasonable defies precise measurement”. (Strickland v

Washington , 104 S.CT. 2052

If defense councel fails to make a meritorious speedy trial claim, it

constitudes ineffective assistance of councel (People v Sweet, 79 AD3d 1772

[4th Dept, 2010]). The right to effective representation also includes the

right to assistance by an attorney who has taken the time to review and

prepare both the law and the facts relevant to the defense, and a reasonable

investigation and preparation of defense witnesses (People v Oliveras, 21

NY3d 339,346-347 [2013]; People v Pottinger, 156 AD3d 1379,1380 [4th Dept

2017]). Moreover, while defense councel's errors in a case individually may

not constitude ineffective assistance, the cumulative effect of defense

councel's actions can deprive a defendant of meaningful representation

(Oathout, 21 NY3d at 132).

4

ATTACHMENT POINT 2

Defense councel failed to submit a motion alleging that the people’s

certificate of compliance was illusory or challenge whether Mr. Myles's

speedy trial rights were violated by the failure to provide a valid

certificate of compliance (A-ll-39). The People's first certificate of

compliance, which was provided prior to arraignment, lacked grand jury

minutes, Giglio material, or a legitimate witness list (A-12). Tn response

to the People's submission and its shortcomings, defense councel made no

request to invalidate the certificate of compliance or a request for the

trial court to conduct a CPL 30.30 (5) inquiry (Arraignment of 2/22/22,

pp.2-5).

Defense councel continued to ignore the illusory nature of the

certificate of compliance when, despite the People's obligation to provide

such information, he was compelled to specifically request police

disciplinary records (Proceedings of 12/20/22, p.5). Even though the people

indicated they would provide such documents, and eventually did so two

months later in a February 21, 2023 supplemental certificate of compliance,

defense councel should have made speedy trial arguments a year earlier when

the People provided its original insufficient December 21, 2021 certificate

of compliance, which, very well could have resulted in dismissal of the

indictment on speedy trial grounds (A-ll-39) (CPL 30.30; Sweet, 79 AD3d at

1772).

Moreover, upon receipt of supplemental certificates of compliance on

February 21, 2023, March 12, 2023, and March 13, 2023, defense councel did

not object to the People's failure to provide any explanation as to the need

for such supplemental submissions (A-150-159) (CPL 245.50[l-a]). Defense

counsel also never requested the trial court to conduct a CPL 30.30 (5)

inquiry in the face of the original certificate of compliance's issues, or

the supplemental certificates. Defense counsel's failures concerning Mr.

Myles's speedy trial rights deprived him of meaningful assistance of counsel

who understood the law related to the case and prevented his receipt of

potentially important discovery material, impacting his ability to present a

defense, and also denied him due process (A-ll-39, 150-159; Proceedings of

12/20/22, p. 5) (Oliveras, 21 NY3d at 346-347; Pottinger, 156 AD3d at 1380).

5

ATTACHMENT POINT 2

~

B. The petitioner argues that due process and reight to a fair

trial were violated in the act of ineffective assistance of counsel. The

Sixth Amendement clearly states ’’the gaurantee in criminal cases the right

to a speedy trial and public trial, the right to be informed of the nature

of the accusation, the right to confront witnesses, the right to counsel,

and the right to compulsory process for obtaining favorable witnesses”. Here

in (U.S. v Cronic, 104 S.CT. 2039) The Court Of Appeals reversed the

conviction because it concluded that respondent did not "have the assistance

of counsel for his defense” that is gauranteed by the Sixth Amendment Of The

Constitution. More specifically, the right to the assistance of counsel has

been understood to mean that there can be no restrictions upon the function

- of counsel in defending a criminal prosecution in accord with the traditions

of the adversary factfinding process that has been constitutionalized in the

“’Sixth Amendments” (422 U.S., at 857, 95 S.CT., at 2553). "Whether a man is

innocent cannot be determined from a trial in which here, denial of counsel

has made it impossible to conclude, with any satisfactory degree of

certainty, that the defendants case was adequately presented”. (Betts v

Brady, 316 U.S. 455,476,62 S.CT. 1252,1263, 86 L.Ed. 1595 (1942)(Black, J.,

dissenting).

C. Defense counsel failed to preserve an appellate record of the

first two waives of jury selection (1-28-95, 104-157). Eleven jurors were

selected during these first two panels (1-28-95, 104-157). Neither the trial

court nor the clerk named the prospective jurors or provided them with a

number, rendering fair appellate review of jury selection for such waives

Impossible (1-28-95). At one point during the first waive of jury selection,

iefense counsel complained to the trial court," [yjou’re forcing us to use

all of our peremptories" (1-98). During the second waive, the trial court

ienied two for cause challenges by the defense, but it was impossible to

ietermine which jurors were actually challenged (1-158-159). Nevertheless,

iefense counsel’s failure to clearly identify the jurors foreclosed

ippellate review of such issues (1-98, 158-159).. Accordingly, defense

counsel’s lack of objection to the method of calling jurors had no

.egitimate strategy, deprived Mr. Myles of fair appellate review of the

jairness

of

jury

selection and constituted

less

than meaningful

6

",

ATTACHMENT POINT 2

representation (1-28-95, 104-157) (Benevento, 91 NY2d at 71-2; see Wright, 25

NY3d at 779).

D. It also should be noted that Mr. Myles respectfully maintains that

communication issues with defense counsel deprived him of meaningful

representation (A-87, 89-91, Proceedings of 11/7/22, p.5; Sentencing of

5/4/23, p.17). Mr Myles maintained his innocence of the crimes charged

throughout the proceedings, denying having an intimate relationship with the

female victim and asserting that defense counsel failed to adequately put

fourth evidence at trial reflecting the actual relationship between the

parties (A-87, 89-91). Mr. Myles also contended that he never waived his

right to a preliminary hearing or to testify at grand jury, and that defense

* counsel’s lack of response to such concerns deprived him of meaningful

assistance (Proceedings of 11/7/22, p.5). Finally, at sentencing, Mr. Myles

; contended that police planted evidence at the creek and that police failed

to test evidence for DNA and fingerprints, or process male victim or Female

victim's phones (Sentencing of 5/4/23, p.17). Mr. Myles's criticisms of the

defense throughout the proceedings demonstrated the serious communication

breakdown between the parties that necessitated further inquiry by the trial

court (A-87, 89-91; Proceedings of 11/7/22, p. 5; Sentencing of 5/4/23,

p.17). While Mr. Myles did not request replacement counsel, he contends he

should recieve a new trial due to the trial court's failure to protect his

Fourteenth Amendment and Sixth Amendment right to counsel and due to

ineffective assistance of counsel (A-87, 89-91; Proceedings of 11/7/22, p.

5; Sentencing of 5/4/23, p. 17).

The cumulative errors of defense counsel deprived Mr. Myles a fair

trial, and as such, the judgment of conviction should be reversed, and a new

trial ordered (A-ll-39, 87, 89-91, 150-159; Proceedings of 11/7/22, p. 5;

Proceedings of 12/20/22, p. 5; 1-28-95, 104-157; Sentencing of 5/4/23,

p.l7).(0athout,21 NY3d at 132)

7

P0INT3: THE COURT VIOLATED MR. MYLES’S RIGHT TO A FAIR TRTAT WHFN

THEY ALLOWED IM TO TESTIFY WHEN HE LACKED COMPETENCY

At a March 6, 2023 competency hearing, TM failed to demonstrate his

ability to give sworn testimony (Proceedings of 3/9/23, pp. 2-14). The

trial court's decision to permit such sworn testimony deprived Mr.

Myles of a fair trial (proceedings of 3/9/23,p. 20).

CPL 60.20 establishes a rebuttable presumption that a child less

than 9 years old is incapable of giving sworn testimony in a criminal

proceeding (People v Morales, 80 NY2d 450,452-453 [1992]). The

presumption is overcome, however , if the court is satisfied that the

child "understand the nature of an oath" (CPL 60.20 [2]; People v

Nisoff, 36 NY2d 560,566 [1975]; People v Merril, 60 AD3d 1376 [4th

Dept 2009]).

Before making a competency to testify determination the court is

required to conduct a preliminary examination of the prospective

witness, which typically involves several interrelated inquiries:

does the child know the difference between a lie and the truth; does

the child know the meaning of an oath; does the child understand what

can happen if he or she tells a lie; and does the child have the

ability to recall and relate prior events" (Morales, 80 NY2d at 453;

People v Ranum, 122 Ad3d 959,960 [2nd Dept 1986]).

Here, TM provided inconsistent confusing testimony that did not

reflect he knew the difference between the truth and a lie

(Proceedings of 3/9/23, pp. 2-14)(Ranum,122 AD3d at 960).

Tm originally asserted that the truth was a "bad thing" before

switching his answer to a "good thing" (Proceedings of 3/9/23, p.8).

Such inconsistencies created legitimate doubt as to his ability to

understand the concept of the truth and a promise (Proceedings of

3/9/23, pp.6,8)(GPL 60.20; Morales,80 NY2d at 452-453).

"The incompetency to TM's answers making him incompetent to testify

here is hardly unusual for a child his age" (see, Ohio v Clark, 135

S.CT 2173).

8

ATTACHMENT POINT 3

__ In the instant case TM was used by the prosecuter to play on the

jurors emotions rather than be a witness of actually evidence to

convict a suspect. Along, with the circumstantial nature of the case

"the understanding of truth and lies and comprehension of the oath

must be accurate as in (People v MCcARTY 221 A.D. 3d 1360,201 N.Y.S.

3d 524 2023 N.Y. slip op. 06173

Moreover, TM claimed that he lied before, but his example, telling

his uncle that he ate noodles when he actually did not, was

nonsensical (Proceedings of 3/9/23, p. 10). He claimed he lied about

eating noodles because he thought he would get in trouble, but then,

rightly denied knowing why he would get in trouble for such an

innocuous act (Proceedings of 3/9/23,p. 10). While he claimed to

understand that it would be wrong if he lied and "got away" with it,

his original example of lying about eating noodles was too illogical

to reflect his understanding of the concept of lying (Proceedings of

3/9/23,p. 10 (CPL 60.20; Morales, 80 NY2d at 452-453).

It also should be noted that the inquiry into TM’s understanding

of an oath, or the process of testifying did not adequately

demonstrate his ability to appreciate the consequences of lying in a

courtroom. (Proceedings of 3/9/23, pp. 2-14)(CPL 60.20 [2]; Ranum, 122

AD3d at 960).

(People v Rose, 223 A.D. 2d 607,637 N.Y.S. 2d 172) "It is

important to be clear that a child under the age of presumptive

competency to testify understands the nature of an oath in a criminal

proceeding and possessed sufficient intelligence and capacity to

justify-the reception of unsworn testimony" (see, CPL 60.20 [2]; see,

People v Rowell, supra; People v Kalicki, supra).

9

ATTACHMENT POINT 3

Considering such circumstances, and the importance of TM’s.

testimony, which was emphasized by the prosecutor in his opening,.the

trial court’s decision to permit TM to testify,as a sworn witness was

erroneous and , so prejudicial. that it deprived Mr. Myles of a fair

trial (Proceedings of 3/9/23, pp. 2-20)(CPL 60.20). As such, the

judgement of conviction should be reversed, and a new trial ordered

(Proceedings of 3/9/23, pp. 2-20)(Ranum,122 AD3d at 960).

10

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

?

CERTIFICATE OF COMPLIANCE

NO.

BRUCE MYLES

V.

STATE OF NEW YORK

As required by Supreme Court Rule 33.1(h), I certify that the petition

for a writ of certiorari contains 8022 words, excluding the parts of

the petition that are exempted by Supreme Court Rule 33.1(d).

I declare under penalty that the foregoing is true and correct.

25

MAY

Executed on

L 20

SWORN TO BEFORE ME ON THIS

—------- ifoTARY PUBLIC

ANTHONY JEHRENREICH

Notary Public, State of NewYom

Registration # 01EH0016932

Qualified In ErieCounty .

CommiBskm Expiree 11/27/27

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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