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
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