# Appendix — Reynolds v. New York

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1521%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 945

## Text

Onn “oa at
00-357 aus 3 | 2000

No. OFFICE OF IHE CLERK

In The

Supreme Court of the United States

JOHN L. REYNOLDS,
Petitioner,
VS.

PEOPLE OF THE STATE OF NEW YORK,
Respondent.

On Petition For Writ Of Certiorari To The
New York State Court Of Appeals

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Paul John Cambria, Jr., Esq.

Counsel of Record
LIPSITZ, GREEN, FAHRINGER,
ROLL, SALISBURY & CAMBRIA LLP
42 Delaware Avenue, Suite 300
Buffalo, New York 14202-3901
(716) 849-1333

Counsel for Petitioner

11 Centre Park (B-1771) 107 Delaware Avenue —- Suite 81
Rochester, New York 14614 Buttalo, New York 14202
(716) 232-6920 THE DAILY RECORD (716) 847-2984

TABLE OF CONTENTS

Page

New York State Court of Appeals
Certificate Denying Leave to Appeal...................0..0.000. A-l
Order and Decision of Appellate
Division, Fourth Judicial Department
Affirming Appellant’s Conviction ...................0ccecceceee. A-2
MEE OU SIO nivncvcsuviddedevcraseccceuevesedvaces: A-7
I cia A-8
I A-92
I a i A-161
Appellant’s Request for a Stay of

~Execution of Sentence and Leave to Appeal
to New York State Court of Appeals ....................0.08. A-204
Respondent’s Opposition to Appellant’s
PI heal cts rentistsccead sticaviearecancsescecs A-240

Appellant’s Reply to Respondent’s
Opposition to Leave Application .....................0cc0ee00. A-245

CO

STATE OF NEW YORK
COURT OF APPEALS

BEFORE: HON. CARMEN BEAUCHAMP CIPARICK,
Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent, CERTIFICATE
- against - DENYING
LEAVE
JOHN L. REYNOLDS,
Appellant.

I, CARMEN BEAUCHAMP CIPARICK, Associate Judge
of the Court of Appeals of the State of New York, do hereby
certify that upon application timely made by the above-named
appellant for a certificate pursuant to CPL 460.20 and upon the
record and proceedings herein,* there is no question of law
presented which ought to be reviewed by the Court of Appeals and
permission is hereby denied. Stay request dismissed as academic.

Dated: June 2, 2000
at New York, New York

/s/

Associate Judge

* Description of Order: Order of the Appellate Division, Fourth
Judicial Department, entered February 16, 2000, affirming a
judgment of the County Court, Cattaraugus County, entered
January 29, 1999.

A-2

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

1738
PRESENT: PINE, J.P., WISNER, HURLBUTT AN BALIO, JJ.

KA 99-535
PEOPLE OF THE STATE OF NEW YORK,
PLAINTIFF-RESPONDENT,
V
JOHN L. REYNOLDS, DEFENDANT-APPELLANT.

John L. Reynolds having appealed to this Court from the
judgment of the Cattaraugus County Court, entered in the
Cattaraugus County Clerk’s Office on January 29, 1999, and said
appeal having been argued by Paul J. Cambria, Jr., of counsel for
defendant-appellant, Diane M. LaVallee of counsel or
plaintiff-respondent, and due deliberation having been had thereon,

It is hereby ORDERED that the judgment so appealed
from be and the same hereby is unanimously affirmed, and the
matter is remitted to Cattaraugus County Court for proceedings
pursuant to CPL 460.50(5).

Memorandum that is hereby made a part hereof.

Entered: February 16, 2000 ‘CARL M. DARNALL, Clerk

A-3

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

(1738) KA 99-535 (Cattaraugus Co.) -- PEOPLE OF THE
STATE OF NEW YORK, PLAINTIFF-RESPONDENT, V
JOHN L. REYNOLDS, DEFENDANT-APPELLANT. --
Judgment unanimously affirmed. Memorandum: Defendant
appeals from a judgment convicting him upon a jury verdict of
manslaughter in the second degree (Penal Law §125.15[1]) and
sentencing him to an indeterminate term of imprisonment of 4 to
12 years. Defendant’s appeal bring sup for review the denial of
defendant’s motion to set aside the verdict pursuant to CPL article
330. On appeal, defendant contends that the conviction is not
supported by legally sufficient evidence and that the verdict is
against the weight of the evidence; that County Court erred in
failing to charge the jury concerning the definition of
circumstantial evidence and the “moral certainty” standard; that
the court violated CPL 270.35 and otherwise erred in discharging
a sworn juror without conducting a probing inquiry and, in so
doing, deprived defendant of his right to be present at a critical
stage of trial; that the court erred in refusing to recuse itself from
defendant’s CPL 330.30 motion; that the verdict should be set
aside on the ground of juror misconduct; and that the sentence is
unduly harsh or severe.

The conviction is supported by legally sufficient evidence
(see, People v. Williams, 84 NY2d 925, 926), and the verdict is
not against the weight of the evidence (see, People v. Bleakley, 69
NY2d 490, 495). The People were required to prove that
defendant recklessly caused the death of the victim (see, Penal
Law §125.15[1]), i.e., that defendant was aware of and
consciously disregarded a substantial and unjustifiable risk of death
(see, Penal Law §15.05[3]; see generally, People v. Johnson, 199
AD2d 418, lv denied 83 NY2d 854). Although no one could
specifically identify defendant as one of the individuals who
attacked the victim, defendant fit the description of one of those
attackers as a dark-haired man wearing a dark shirt. Moreover,

A-4

the testimony of various witnessed placed defendant in proximity
to the victim throughout the attack and established that no one if
that vicinity abstained from the attack. Further, defendant fled the
scene upon the arrival of police, showing his consciousness of
guilt. Under the circumstances, the festimony and the logical
inferences to be drawn therefrom support a finding that defendant
punched and kicked the victim and thus recklessly caused his death
(see, People v. Peck, 192 AD2d 746, 747; People v. Quinones,
177 AD2d 519, 520, lv denied 79 NY2d 862; cf., People v.
Bridenbaker, __ AD2d __ [decided Nov. 12, 1999]; People v.
Figueroa, 143 AD2d 767, lv denied 73 NY2d 855; People v.
Osburn, 124 AD2d 1048, 1049, lv denied 69 NY2d 748, 831).

In any event, defendant was charged both as a principal
and as an accomplice. Penal Law §20.00 provides, “When one
person engages in conduct which constitutes an offense, another
person is criminally liable for such conduct when, acting with the
mental culpability required for the commission thereof, he solicits,
requests, commands, importunes, or intentionally aids such person
to engage in such conduct.” Here, the evidence is sufficient to
show that defendant requested, solicited, commanded or
importuned the acts leading to the victim’s death, and that he led
the pursuit of the victim and his companions. To be weighed
against that evidence was defendant’s denial of involvement and
the attempts by defendant to depict himself as a peacemaker
throughout the exchange of insults and epithets that preceded the
melee. Weighing that evidence, we conclude that the jury did not
fail to give the evidence the weight it should have been accorded
on the issue of defendant’s culpability as a principal or an
accomplice.

Defendant’s contention that the court erred in failing to
define circumstantial evidence in its charge to the jury is
unpreserved for our review (see, CPL 470.05[2]), and we decline
to exercise Our power to review that contention as a matter of
discretion in the interest of justice (see, CPL 470.15[6][a]). There
is no merit to defendant’s contention that the court erred in

A-5

refusing to charge the “moral certainty” test for evaluating
circumstantial evidence. Evidence of defendant’s guilt was not
purely circumstantial (see, People v. Daddona, 81 NY2d 90, 992;
People v. Barnes, 50 NY2d 375, 379-380). With respect to
defendant’s complicity, there was direct evidence (see, People v.
Daddona, supra, at 992) establishing that defendant urged his
accomplices to assault the three men (see, People v. Roldan, 88
NY2d 826, 827; People v. Blount, _ AD2d __ [decided Oct. 21,
1999]). A moral certainty instructions is not required merely
because the proof with respect to any particular element -- here,
intent -- is wholly circumstantial (see, People v. Johnson, 65
NY2d 556, 561, rearg denied 66 NY2d 759; People v. Miller, 255
AD2d 460, lv denied _ AD2d ___ [decided Nov. 30, 1999]).

We reject defendant’s contention that reversal is required
based on the court’s alleged violation of CPL 270.35 in
discharging a sworn juror for cause. Defense counsel demanded
that the juror be discharged (see, People v Joy, 206 AD2d 440, lv
denied 84 NY2d 869) and did not ask that the juror be questioned
directly. There is no basis for defendant now to complain about
the court’s handling of that matter (cf., People v. Torres, 80 NY2d
944, 945, rearg denied 81 NY2d 784; People v. Santiago, 255
AD2d 63, 67-69, lv denied _ NY2d ___ [decided Nov. 30, 1999).

Nor did the court violate defendant’s right to be present at
a critical stage of trial. A conference leading to the court’s
discharge of a sworn juror is not a critica! stage of trial at which a
defendant must be present (see, People v. Aguilera, 82 NY2d 23,
34; People v. Torres, supra, at 945). In any event, defendant was
present during the entire conference leading to that determination,
although not present when the court informed the juror of his
discharge.

There was no error in the refusal of the court to recuse
itself from defendant’s CPL 330.30 motion because there was no
valid basis for doing so (see generally, People v. Moreno, 70
NY72d 403, 405-407). The evidence at the hearing established that

A-6

the jurors were not subjected to any improper outside influence
(see, CPL 330.30[2]; People v. Leonard, 252 AD2d 740, 741, lv
denied 92 NY2d 983; People v. Gonzales, 228 AD2d 722, lv
denied 88 NY2d 1021). We have considered defendant’s challenge
to the severity of the sentence and conclude that it is without merit.
(Appeal from Judgment of Cattaraugus County Court, Himelein, J.
- Manslaughter, 2” Degree.) PRESENT: PINE, J.P., WISNER,
HURLBUTT AND BALIO, JJ. (Filed Feb. 16, 2000.)

STATE OF NEW YORK
COUNTY OF CATTARAUGUS : COUNTY COURT

THE PEOPLE OF THE STATE OF NEW YORK

VS CERTIFICATE
OF
JOHN L. REYNOLDS Defendant CONVICTION
DOB: 9/14/72 IND 95-168

—~

This is to certify that JOHN L. REYNOLDS was charged
with MURDER 2™, Sec. 125.25(2), MANSLAUGHTER 1*,
Sec. 125.20(1), MANSLAUGHTER 2™, Sec. 125.15(1),
ASSAULT 1*, Sec. 120.10(1) and ASSAULT 2™, Sec. 120.05(2)
on December 1, 1995 under Indictment 95-168. On September 8,
1997, the Court dismissed Count 22 - Manslaughter 1",
Sec. 125.20(1) and Count 24 - Assault 1", Sec. 120.10(1) on
the People’s Motion. On September 17, 1997, after a Jury Trial
was conducted, the defendant was found Guilty of
MANSLAUGHTER 2™, Sec. 125.15(1) and was hereby sentenced
to an indeterminate term of incarceration in the New York State
Corrections System having a maximum period of Twelve (12)
Years and a minimum period of Four (4) Years. A $155.00
Mandatory Surcharge was imposed by the Honorable Larry M.
Himelein on the 29" day of January, 1999.

Dated: July 28, 1999

/s/

Sandra A. Wogick
Chief Clerk

SEAL

A-8

— To be Argued by:
Paul J. Cambria, Jr., Esq.
Estimated Time for Argument:
20 Minutes

STATE OF NEW YORK
SUPREME COURT
APPELLATE DIVISION : FOURTH JUDICIAL DEPARTMENT

PEOPLE OF THE STATE OF NEW YORK,

Plaintiff/Respondent,
VS.

JOHN L. REYNOLDS,
Defendant/Appellant.

Cattaraugus County Indictment No. 95-168

BRIEF FOR APPELLANT

LIPSITZ, GREEN, FAHRINGER,
ROLL, SALISBURY & CAMBRIA LLP

PAUL J. CAMBRIA, JR., ESQ.

ROGER W. WILCOX, JR., ESQ.

SHANNON M. HENEGHAN, ESQ.

Attorneys for Defendant/Appellant

42 Delaware Avenue, Suite 300

Buffalo, New York 14202

(716) 849-1333

A-9

TABLE OF CONTENTS

SEE Ol Fe SE Ac: eincericiciantshinestyarbitinaenines iii
EF SE FORD osc ccetecessevecconssscetbsacusnbeusacedeses
PRELIBEINAR YS SEA TENGE .occcscrcccccsccsccscccsvesrsveesessess
PE Se POs BR ip ciercasscsschessiovbtniciecidtiataivatincns

3 Events Inside The Pizzeria ........................+.

Il. Altercations Outside the Restaurant .............
Ill. The Medical Evidence .........................006.
POINT I -

THE TRIAL COURT'S REFUSAL TO
INSTRUCT THE JURY ON THE MORAL
CERTAINTY STANDARD IN A WHOLLY
CIRCUMSTANTIAL CASE AND ITS
FAILURE TO PROVIDE EVEN THE

MOST MINIMAL DEFINITION OF
CIRCUMSTANTIAL EVIDENCE REQUIRES
REVERSAL OF APPELLANT'S CONVICTION
AND THE GRANTING OF A NEW TRIAL ..........

A-10

POINT II -

THE TRIAL COURT VIOLATED CPL §270.35

AND DENIED APPELLANT HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO

BE PRESENT AT ALL CRITICAL STAGES

OF THE TRIAL BY DISCHARGING A

SWORN JUKOR WITHOUT CONDUCTING

THE PROBING INQUIRY REQUIRED BY

LAW AND BY MEETING WITH THE JUROR

IN THE ABSENCE OF BOTH APPELLANT

ANG) TEED AS UCN GES vesiccensvievecsesucadevasionrenestes 43

POINT III -

THE TRIAL COURT ERRED IN REFUSING
TO RECUSE ITSELF FROM APPELLANT'S
§330.30 MOTION HEARING .................0cceeeeeeees 46

POINT V -

THE SENTENCE IMPOSED ON APPELLANT
IS HARSH AND EXCESSIVE AND SHOULD BE
- MODIFIED IN THE INTEREST OF JUSTICE ....... 60

POINT VI - —

APPELLANT'S CONVICTION IS NOT

SUPPORTED BY LEGALLY SUFFICIENT
EVIDENCE AND IS AGAINST THE

WEIGHT OF THE EVIDENCE. .........cccccceesssessees 63

OO AING vricsenssesstaensed i iciccessepdensevineitnneaeaan 66

A-l1l1
TABLE OF AUTHORITIES
Page
Cases:
Borden Kirches v. Hayes, 434 U.S. 357,
ES 61
Corradino v. Corradino, 48 N.Y.2d 894,
oii pepdoencowceeodoce 51
Estes v. Texas, 381 U.S. 532,
. oe cnabbbedeodeewccecs 58
Matter of Steinberg, 51 N.Y.2d 74,
SU he shldieasdivedwodusces>desceeodivetecececeses 51
People ex rel. MacCracken v. Miller,
Te cccevesdansecuesrersees 63
People v. Amooro, 8 A.D.2d 683,
SE A ea 47
People v. Benzinger, 36 N.Y.2d 29,
en eesesorevvedeoss 63, 65
People v. Bleakley, 69 N. Y.2d 490 (1987) ...........0.0.0... 63, 65
People v- Bray, 99 A.D.2d 470,
eee a piubedevesceces 41
People v. Brown, 48 N. Y.2d 388,
a. isceseccnebenserecsccess 57

(iii)

A-12

People v. Buford, 69 N.Y.2d 290,
ee ee ev hivchtccrccreccoriancdcecssisusnactons 43, 44

People v. Comfort, 113 A.D.2d 420,
es ies chncuiirninatacesebcciedcdiuasinbeeiessnin 40

People v. Edgerton, 115 A.D.2d 257,
495 N.Y.S.2d 858 (4th Dept. 1985) ..................04. 54, 57, 58

People v. Farrar, 52 N.Y.2d 302,
re Pee ee Ci srectkscrssdinacrcreseudetdedridionriatnns 61

People v. Greenfield Construction Co., Inc.,
48 A.D.2d 765, 368 N.Y.S.2d 89 (4th Dept. 1975)............ 52

People v. Harris, 122 A.D.2d 458,
Fe Gs 5 ee Oe UBD oe ceesccccscccrvetcisvscertnetats 62

People v. Hawkins-Rusch, 212 A.D.2d 961
ee EE eidobcethecrisccndgsisiitenreesttelacsvucnisemieesavth 63

People v. Huntley, 87 A.D.2d 488, ,
452 N.Y.S.2d 952 (4th Dept. 1992) ..............s0scececeeee 57, 58

People v. Ivery, 96 A.D.2d 712,
Po ge, RET REI ed rec Fer remee. 5 43

People v. Marin, 65 N.Y.24 741,
492 N.Y .S.26 16, 461 N26 SSG ccicccssecrecvecsecssssssseses 40

People v. McLean, 107 A.D.2d 167,
Fis ee EE petnicshkcecacseuntinsdwnsnsisntdeunvenedeaneeneies 40

People v. Mehmedi, 69 N.Y.2d 759,

FE Bac ARE BE ivbastiecnrreseenacincnidecrvdeswrosivsiseliioton ad

A-13

People v. Mickewitz, 236 A.D.2d 793,

a I ic ei ai ede ve 39, 42
People v. Moreno, 70 N.Y.2d 403,

an as ek cucacdnakvadas 51
People v. Patterson, 106 A.D.2d 520,

Se Bh. ee Fe Oe Ny SOD vvictdcdewsvetedcvceveczevesseeers 61
People v. Pena, 50 N.Y.2d 400,

} eS Foy), | ners ceepsberennesstonts 61
People v- Rodriguez, 14 A.D.2d 917,

221 N.Y.S.2d 532 (2d Dept. 19961) ............ j NORCO Per aaa 2 47
People v. Rumble, 45 N.Y.2d 879,
Rk ETE RRR LSPS: Fire LUI ome ect Ne SO AR aS RRR cae 39
People v. Sanchez, 61 N.Y.2d 1022,

a ee BE ticisthnce vntkaksibvedvsoceceoctoads .... 38, 42
People v. Shughart, 247 A.D.2d 826,

668 N.Y.S.2d 836 (4th Dept. 1998) ............. ccc eeeeseeeeeee eee 62

People v. Sinclair, 231 A.D.2d 926,
647 N.Y.S.2d 897 (4th Dept. 1996) ..................cecseseeeeees 62

People v. Sloan, 79 N.Y.2d 386,
Ee CRED sacenbisevesnndersepnedendontecinvcoueesets 45

People v. Smith, 63 N.Y.2d 41,
7 ey EADIE SS Cnr rece See eer en epee 51

People v. Summerset, 100 A.D.2d 947,

ee STE vedenntdnsdabayecpstnvanercoetonevsnd ineaversocnente 41

A-14

People v. Thomas, 184 A.D.2d 1069,

584 N.Y.S.2d 706 (4th Dept. 1992) .....c0ccccccessoosessseeeseees 58
People v. Turaine, 78 N.Y.2d 871,

ST3 N.Y 3.dO Aeiesciiicccisettinanmtinneeeeeeee 44
People v. Wong, 81 N.Y.2d 600 (1993)..............cccceeeeeeeees 63

People, or Complaint of Watkins v. Lennan,
706 App. Div. 266, 200 Fh. FB. SOD sis satccevecvedecstradstdstouss 47

Sardino v. State Com'n on Judicial Conduct,
58 N.Y.2d 286, 461 N.Y.S.2d 229 (1983)...............0.0. 51-53

Snyder v. Massachusetts, 291 U.S. 97,
SA FOL. BID. ssinac <uwncsdvecdasmuecacciss dees ee ees 45

United States ex rel Owen v. McMann, 2d Cir.,
435 F.2d 813, cert. denied, 402 U.S.

906, 91 S.Ct. 1373, 28 L.Ed.2d 646) .....cccccccecceeeeeeeee 57, 58
United States v. Halley, 2 Cir.,

AO BIE AID 0 ocosciveastueieientpece ee 47
United States v. McKinney, 429 F.2d 1019

(Sta Che, IID) vvrscseessasstncccenmtaeenoe 59
Other Authorities: Z
Criminal Procedure Law Section 260.20 .............:sssesseeeeee- 44
Criminal Procedure Law Section 270.35 ...............ceseeeeeeees 44
Criminal Procedure Law Section 330 .............s.0+0++- 47-49, 53

A-15

Criminal Procedure Law Section 330.30 ............ 34, 37, 46, 54
Criminal Procedure Law Section 330.40 ..............:020008 46, 54
EE OR WE MUNN csc vocscerdecrvdsevsvedssseciovevesestoes 36
Ey SIE BP nrcidcgccveveretiuveviisesecervensunsevoukeare 51
New York State Constitution, 7
RTE saat povrdcensvnebecdcdsrebevhinevenvencterreerens 45
New York State Penal Law Section 15.05(3)....................+. 36
New York State Penal Law Section 20.00..................04. 40, 50
New York State Penal Law Section 125.15(1) .................... 35
BE ee Hee Ser etes ONE CBs ceievescinsocecvcnscsoncosceves 51
Title 22, N.Y.C.R.R. Section 100.3(6) .................0se00 51, 52
Title 22, N.Y.C.R.R. Section 100.3(C)(1).......-e+sesesseeseesee 51
United States Constitution, Sixth Amendment................ 56, 57

(vil)

A-16

QUESTIONS PRESENTED

Does the trial court's refusal to instruct the jury on the
moral certainty standard in a wholly circumstantial case and
its failure to provide even the most minimal definition of
circumstantial evidence require reversal of appellant's
conviction and the granting of a new trial?

Answer below: Cattaraugus County Court denied
appellant's motion to set aside the verdict on this ground.

Does the trial court's violation of CPL §270.35 and its
denial of appellant's state and federal constitutional to be
present at all critical stages of the trial require reversal of
appellant's conviction and the granting of a new trial?
Answer below: None.

Did the trial court err in refusing to recuse itself from
appellant's CPL §330.30 motion hearing?

Answer below: Appellant's motion for recusal was denied.

Did juror misconduct during deliberations violate appellant's
constitutional rights to a fair trial?

Answer below: The trial court denied appellant's
CPL §330.30 motion on this ground.

Is the sentence imposed on appellant harsh and excessive?

Answer below: None.

Is appellant's conviction supported by legally sufficient
evidence? Is appellant's conviction against the weight of the
evidence?

A-17

Answer below: The trial court denied appellant's CPL §330.30
motion with respect to the illegal sufficiency of the evidence
supporting the jury's verdict.

PRELIMINARY STATEMENT

This is an appeal from a judgment of conviction before
Honorable Larry M. Himelein (Cattaraugus County Court).

Under Cattaraugus County Indictment No. 95-168,
appellant, along with seven other co-defendants, was charged with
Murder in the Second Degree [Penal Law §125.25(a)],
Manslaughter in the First Degree [Penal Law §125.20(1)], -
Manslaughter in the Second Degree [Penal Law §125.15(1)},
Assault in the First Degree [Penal Law §120.10(1)] and Assault in
the Second Degree [Penal Law §120.25(2)]. All of appellant's
co-defendants took pleas, resulting in the following dispositions:

(1) Sandra S. Haggerty - pled guilty to assault
in the third degree and was sentenced to
sixty (60) days in the Cattaraugus County
jail and three (3) years probation.

(2) Kerrie L. Haggerty - pled guilty to assault
in the third degree and was sentenced to
one (1) year in the Cattaraugus County jail.

(3) Brian E. Mooney - pled guilty to criminally
negligent homicide and was sentenced to
one year in the Cattaraugus County jail.

(4) Shane Appleby - pled guilty to criminally
negligent homicide and was sentenced to an
indeterminate term of incarceration of from

A-18

one and one-third years to a maximum of
four (4) years.

(5) Shawn Appleby - pled guilty to
manslaughter in the second degree and was
sentenced to an indeterminate term of
incarceration of from two and one-third
years to a maximum of seven years.

(6) Cory Shea - pled guilty to criminally
negligent homicide and was sentenced to
one (1) year in the Cattaraugus County jail.

(7) Troy A. Fusco - pled guilty to assault in the
third degree and was sentenced to sixty (60)
days in the Cattaraugus County jail and
three (3) years probation.

John Reynolds, the appellant in the instant case and the only
defendant who chose to exercise his right to a trial, received a
disproportionately high sentence.

Appellant was tried for the following offenses: murder in
the second degree, manslaughter in the second degree, criminally
negligent homicide and assault. Trial of this action commenced
with jury selection on September 8, 1997. Presentation of proof
began September 10, 1997 and the jury rendered a verdict on
September 17, 1997. The jury found appellant guilty of
Mansiaughter in the Second Degree and acquitted him of Murder in
the Second Degree, Assault in the Second Degree and Assault in the
Third Degree.

On January 29, 1999, appellant was sentenced to an
indeterminate period of incarceration of from four to twelve years.
A timely Notice of Appeal was filed on January 29, 1999.

A-19

Appellant is represented on this appeal by Paul J. Cambria,
Jr., Esq., Roger W. Wilcox, Jr., Esq. and Shannon M. Heneghan,
Esq., of the law firm Lipsitz, Green, Fahringer, Roll, Salisbury &
Cambria LLP. The People of the State of New York have been
represented throughout these proceedings by the New York State
Attorney General's Office.

STATEMENT OF FACTS

The People presented eighteen witnesses at trial. Eleven of
these witnesses observed events at the East Side Pizzeria in Olean,
New York, on October 22, 1994. Not a single one of these
individuals witnessed any physical involvement of John Reynolds in
the altercation involving Kevin King. The proof set before the jury
was entirely circumstantial, without a shred of direct evidence
establishing John Reynolds’ culpability for the death of Kevin King.

The main elements of the chronology of this incident
concern events both inside the East Side Pizzeria and outside the
pizzeria (where the altercation at issue occurred). This factual
summary will address the relevant testimony in a similar manner—

I. Events Inside The Pizzeria

The significance of the events inside the pizzeria derives
primarily from the prosecution's trial strategy of attempting to cast
John Reynolds as the group leader who exhorted his friends to
violence and "led the charge” on Kevin King and his friends.
However, examined closely, the facts do not support this tactical
characterization of appellant and, in fact, show that he actively tried
to resolve the differences between his friends and the King group
(which included his sister's brother-in-law, Steven Hellwig).

The first prosecution witness, Dale Cummings, stopped at
the East Side Pizzeria with his wife Kathy after playing a "gig" with

- A-20

his band in Wellsville, New York. They arrived at the restaurant at
approximately 2:15 a.m. and saw Gayle Wheeler waitressing and
Ray Seeley working as the cook [765-66]. Around 2:30 a.m., a
large group of kids entered the pizzeria. The group was comprised
of approximately ten individuals (both male and female). They sat
at two tables near the middle of the front window of the restaurant.
Cummings thought that the group was loud and obnoxious [878-81].
He recognized Kerrie Haggerty and did not know who the others
were by name, but recognized some of the kids [876].

At about 2:35 a.m., Kevin King, Steven Hellwig and Kevin
Kenyon entered the restaurant. Kenyon had a black eye when he
greeted Kerrie Haggerty. Cummings observed another individual
(not identified as either male or female) look at Kenyon and say,
"poy, the more they come in, the uglier they fuckin’ look." He
recalled that there was a small pushing or shoving match between
Kenyon and one of the seven males sitting at the table. Based upon
his observations, Cummings thought Kenyon was intoxicated given
his slow actions and the fact that he burst with anger when the
comment about his eye was made. Cummings did not feel that
Kevin King and Stephen Hellwig were intoxicated [881-86].

Kevin Kenyon then very angrily left the restaurant and stood
outside the front window, gesturing to the large group inside. King
and Hellwig remained in the restaurant. According to Cummings, at
some unspecified point in time, Ray Seeley asked Kenyon, Hellwig
and King to come outside, but Cummings could not hear what was
said. Eventually Kenyon reentered the restaurant after failing in his
efforts to get the larger group to pursue him outside, and sat at the
counter with King and Hellwig [884-85, 891].

While at the counter, Kevin Kenyon continued to make eye
contact with the larger group.. Vulgar language and rude comments
ensued, as well as statements about Kenyon’s black eye. Cummings

A-21

acknowledged that he did not hear John Reynolds make any
statements about Kenyon's eye [889-90].

As Cummings and his wife were about to leave, "they all
stood up" to have a fight which did not occur at that time.
Cummings then went to the register to pay, where Kenyon and King
greeted him by name. He had previously known King, Kenyon and
Hellwig while he was a security guard at a local mall. Cummings
responded that he was well and advised them that they should "stay
cool and behave and stay out of trouble" [886-88].

When Cummings and his wife left the East Side Pizzeria, he
counted eight males and three females in the large group. He
further recalled that another very well dressed couple came into the
restaurant and joined that same group [888].

Jack Doxey told a similar, but more detailed, story. After
helping his father, Robert Doxey, fix a flat tire on his mother's car
on the evening of October 22, 1994, they decided at approximately
2:10 a.m. to go to the East Side Pizzeria. As Jack was parking his
pickup truck near the side entrance to the restaurant, another car
pulled in to his right. The occupants of the car were laughing,
giggling and making noise, so Jack and his dad decided to enter
through the front door of the restaurant [1146-48].

While Jack and Robert Doxey sat in the last booth on the
left-hand side of the restaurant nearest the kitchen, the group from
the car sat two tables from the front entrance of the pizzeria on the
right side of the restaurant. Jack Doxey knew a few people in the
group: Matt Sweatland, Brian Mooney and Sean Appleby. He also
recognized John Reynolds whom he had known by name prior to
that evening. Reynolds was sitting at a table behind the large group
[1148-50].

13

A-22

Three guys then entered the restaurant, one with a bloody
eye. They sat at the first round table next to the big group and
things were peaceful for awhile before some heated conversations
got started. Jack did not know who started the conversation, but
believed that it was the large group. Individuals in the big group
were telling one of the three guys that he needed to shave. The
cook then came over and took the group of three outside. Less than
a minute later, the three returned, sat at the counter. Things calmed
down for a while until two males from the large group when into the
rest room, followed by one of the three guys at the counter (whom
Jack could not identify). This same individual came out of the rest
room and told his two friends that they had better watch out because
"they are gonna get their ass kicked when they left." Jack could
hear this conversation because he was within touching distance of
the group of the three [1150-54].

While both groups were eating their food, there was still
animosity between them. Steven Hellwig was being harassed the
most, but the only one who really seemed bothered by the comments
was the guy with the bloody eye [1155-57]. Eventually, the three
got up to leave and the last person out the door -- Hellwig -- was still
being picked on so he challenged the larger group to go outside.
Jack Doxey could not recall the specific words Hellwig used in his
challenge [1158].

After a brief hesitation, someone whom he thought was
Brian Mooney “busted for the door." Eventually, everyone from
the larger group left, but Jack could not say specifically when John
Reynolds exited the pizzeria [1158-59]. Significantly, he did not
hear Reynolds say either "you don't have to take that shit" or "are
you going to take that shit” [1169-70].

During the entire time that Jack Doxey was inside the East
Side Pizzeria, he did not hear John Reynolds say a mean or nasty
word to anyone in the small group. Reynolds was minding his own

14

A-23

business and did not challenge anyone to a fight or tease anyone
about having a red eye or a scruffy beard [1167-70].

Robert Doxey gave similar testimony concerning the events
he witnessed inside the East Side Pizzeria on the evening of October
22, 1994. He recalled that when Jack parked his pickup truck at the
northwest corner of the restaurant a car containing a number of
passengers pulled in beside them. Robert looked over at the car and
saw Matt Sweatland, but did not recognize anyone else. The group
seemed to be having a good time and was loud and boisterous.
Robert felt uncomfortable around them and told Jack that he wanted
to use the front entrance to the réstaurant instead of the side entrance
which the group used [1180-81].

Robert and his son set in the last booth on the left side of the
restaurant. When the group from the car came in, they stopped at
the counter to say "Hi" to a couple sitting there. They then sat
down at a large table located near a window at the front of the
restaurant. An unspecified period of time later, three men entered
the restaurant. One of them had a red eye. At the time, Robert
recognized the men, but did not know any of-them by name
[1183-85].

As the men walked into the restaurant, an unidentified
person at the table where the large group sat said, "What's that
red—eye CS doing in here?" "Red Eye" (Hellwig) appeared to take
offense and approached the table. However, he did not start any
trouble and simply said hello to Kerrie Haggerty [1185].

The three males he later found out were Steven Hellwig,
Kevin Kenyon and Kevin King sat at a table near the larger group.
Someone at the other table looked over and said, "Buy a razor and
shave, you hippie." Hellwig became angry and responded, "Let's
go outside and settle this." Robert Doxey recalled that the waitress,
Gayle Wheeler, and the cook, Ray Seeley, approached Hellwig and

15

A-24

his friends. Seeley told them, "You're outta here, this ain't going
on,” and took the three men outside [1186-87].

Hellwig, Kenyon and King were allowed back into the
restaurant, where Wheeler announced loudly enough for everyone to
hear, "If you-just sit down here, eat your breakfast, you can sit
down. If you are gonna cause anymore trouble, even look over at
that table, you aré outta here." She then led the three over to the
counter area within an arm's length of Robert Doxey and his son
[1186-87].

After they were seated, both groups ate. During this time,
Robert noted that Pam Brochu and her boyfriend spoke to Hellwig
about a neighbor they both knew [1187]. Robert also heard
comments directed from the large group towards the three at the
counter. Some of the comments were simply said loud enough for
the King group to hear, but were not obviously directed toward the
counter area. After some of these statements were made, Robert
saw John Reynolds for the first time that evening. Reynolds went
aver to talk to Hellwig, but Robert could not hear what was said
[1887-89]. : :

Upon hearing the comments from the large group, Kevin
Kenyon became visibly upset and stood up a number of times.
Robert Doxey told Kenyon not to worry about what was being said
and to just finish his breakfast, go home, get some sleep and in the
_ Morning he would realize that this was nothing he needed to react
to. Kenyon ignored him several times until Wheeler pointed out that
Robert was talking to him. Kenyon then turned around and Robert
shook his hand saying, "I'm telling you just don't let this bother
you. Just let it go. It's nothing” [1189-90].

Both before and after his conversation with Kevin Kenyon,
Robert Doxey, saw John Reynolds come over to talk to Steven

16

A-25

Hellwig a number of times. Robert could not, however, recall
anything said between Reynolds, Hellwig, Kenyon and King [1191].

Someone from the larger group then went into the restroom
and Kenyon followed him in. Matt Sweatiand entered the restroom
after Kenyon. When they came out, Kenyon went to the counter
and “said they were gonna get their asses kicked when they left"
[1191-92].

Eventually, Hellwig, Kenyon and King went to the register
to pay their bill. While they were doing this, Robert Doxey heard
more "jawing" from the patrons at the large table. He did not pay
attention to what was being said because Hellwig and his friends
were leaving. However, after King and Kenyon left, Hellwig spun
around in the doorway and said, "Come out in the parking lot, we'll
settle this.” There was a brief moment of silence and then Brian
Mooney got up and said, "Let's go" [1193-94].

The rest of Mooney's group did not appear to want to go
outside until, after "quite a while," one of the Appleby boys who
"was just sitting there like boiling . . . he just shot right up and Brian
was standing behind him and he came up so fast that it threw Brian

~right up against the wall, and then he started for the door and
everybody else just hopped up and followed suit..." Wheeler and
Seeley told them, "You are not going out that door,” but the group
paid no attention to them and left the restaurant [1194-95].

Significantly, while Robert Doxey clearly recalled Brian
Mooney being the first one to exhort the rest of his group to go
outside and one of the Applebys leading the way out the door, he
did not see John Reynolds exit the building. In fact, Robert could
not recall seeing Reynolds at any time after he spoke to Hellwig at
the counter [1196]. Further, while Reynolds was talking to Hellwig,
Robert observed that he was smiling and that “[t}hey were just
talking like friends." He did not feei that John Reynolds behaved

17

A-26

inappropriately at any time and noted that Reynolds did not curse or
taunt anyone. Essentially, Robert felt Reynolds was minding his
own business [1206-07].

Gayle Wheeler had worked as a waitress and cook at the
East Side Pizzeria for approximately fifteen years and had known
who John Reynolds was all his life, although she had never been
introduced to him prior to October 22, 1994. Reynolds came into
the restaurant with Matt Sweatland at approximately 2:00 a.m. and
was joined by Brian Mooney, Kerrie Haggerty, Shawn and Shane
Appleby, Carl Hollamby, another Haggerty girl and Troy Fusco.
They sat at one big table near the front window. Cory Shea and-his
girlfriend came in later and sat at a smaller table at which Sweatland
“and Reynolds subsequently joined them. Wheeler knew all of these
people [1408-12].

A short time later, Kevin King, Steven Hellwig and Kevin
Kenyon arrived. As they came through the door, Shawn Appleby
said something about Kenyon's bloodshot eye. Kenyon immediately
wanted to fight and went outside where he stood near the window
motioning the Applebys' group to come out. Wheeler was taking
orders at their table at the time and would not let anyone go out and
fight. She recalled that Hellwig and King remained at the front door
during all of this and did not get involved [1412-14]. 5

Ray Seeley then came over and wanted to make Kenyon,
Hellwig and King leave. However, Wheeler talked to them and the
three promised that they would be quiet, so she let them remain.
She also told them that she would call 911 if there were any further
problems. When the three men started to sit at a table right next to
the larger group, Wheeler told them to sit somewhere else, so they
chose the counter [1414-15].

As the evening continued, some stares and remarks were
exchanged between the two groups and Wheeler asked Hellwig and

18

A-27

Kenyon to look elsewhere and to keep quiet. When the three had
finished their breakfast and paid at the register, they chose to pass
by the larger group's table. Kenyon stopped and made a remark
which Wheeler did not hear. Then, as the three men were leaving
through the front door, Steven Hellwig turned around and
challenged the larger group to a fight with Kenyon's support. King
stood back and did not say anything [1418-19].

For a moment, nothing happened. Then, as Wheeler was
taking a sandwich to Cory Shea, John Reynolds got up to leave.
When Wheeler tried to stop him from going outside, Reynolds
replied that he just wanted to go talk to Steven Hellwig, his sister's
brother-in-law. Wheeler acknowledged that she knew of the family
connection between Reynolds and Hellwig, but told Reynolds that he
did not need to go outside. Reynolds brushed her aside and left the
pizzeria [1419-20].

Wheeler next recalled that Shawn Appleby followed
Reynolds out the door. Wheeler also unsuccessfully tried to stop
Shawn from leaving. The rest of the group then exited through both
the front and side doors. Wheeler immediately called 911 [1421].

Larry Bedow, a restaurant patron that evening, also saw
John Reynolds stand up after Steven Hellwig issued his challenge.
As Reynolds calmly walked toward the door, Bedow asked him to
sit down. Reynolds, however, continued out the door. During the
ten to fifteen minutes that he was in the pizzeria, Bedow did not see
Reynolds do anything obnoxious or say anything rude to Kenyon,
Hellwig and King [1030-32, 1046-47].

The cook that evening, Ray Seeley, recalled that a large
group came into the restaurant between 1:15 and 1:30 a.m. Seeley
identified the members of this group as Brian Mooney, Cory Shea,
Matt Sweatland, Kerrie Haggerty, Haggerty's sister, John Reynolds,
Troy Fusco, Shawn Appleby and Shane Appleby. He recognized

19

A-28

each of these individuals, but was not a friend or associate of any of
them. Seeley knew that evening that John Reynolds and Steven
Hellwig were related by marriage [1370-73].

Approximately twenty to thirty minutes later, Steven
Hellwig entered the pizzeria with Kevin Kenyon and a third man
Seeley did not know at the time, but later found out was Kevin
King. As they walked in, someone in the larger group insulted one
of the three and words were exchanged back and forth. Wheeler
asked that the groups stop exchanging words and Seeley asked King
and Hellwig to step outside. Kenyon remained talking to Wheeler
[1374-75].

Once outside, Seeley told King and Hellwig he thought it
would be better that they find somewhere else to eat. They
responded that all they wanted to do was eat and that there would_
not be any problems. Seeley stuck his head into the restaurant to
ask Wheeler for her opinion and they decided to let the three men _
remain in the restaurant [1374-75].

Upon re-entering the restaurant, the three men wanted to sit
at a table right next to the larger group, but Seeley and Wheeler
encouraged them to-sit at the counter. After they settled themselves,
the two groups were rude to each other, making facial expressions
and exchanging words. While this was going on, Seeley saw John
Reynolds talking with people of both groups [1375-76, 1378].

Eventually, the three men at the counter paid their bill and
chose to walk by the group at the large table and exit out the side
door rather than simply walking out the front door. As they left,
Seeley heard one of the three men say something to the effect that,
"if somebody was real men they'd take it outside." No one in the
larger group responded to the comment [1376-77].

™,

20

~ A-29

A short time later, John Reynolds left the pizzeria. Seeley
was in the kitchen area at the time and did not hear Reynolds say
anything as he-left (n.b., Gayle Wheeler was out in the table area
when Reynolds told her that he was going outs‘de simply to talk to
Steven Hellwig, to whom he was related by marriage [1419-20)).
Seeley then went over tc the rest of the group and tried to stop them
from following Reynolds out the door. They just nudged him aside,
so he followed them out the door [1377-80].

Curiously, a report filed by State Police Investigator Travis
stated that on April 25, 1995, Seeley had told the Investigator that
"the Appleby boy with the beige knit shirt was the first ope out the
door.” At trial, Seeley denied ever making this statement [1401].

Pamela Brochu was a customer at the East Side Pizzeria on
the same night. She and her fiancé sat at a table near the restaurant
counter and observed a group of about seven people seated at a large
table making derogatory comments about three men at the counter.
She knew Steven Hellwig because he lived across the street from her
at the time, but she only later found out the names of the other two
guys sitting with him at the counter. One, Kevin Kenyon, got "kind
of rude” and told them to “Shut up and leave us alone." Brochu
then saw someone from the large group whom she did not know
come over to Hellwig and tell him that he was calming them down
and everything was gonna be okay. However, she heard this same
person go back to the larger group and refer to the guys at the
counter as "skuzbags." While they were still in the restaurant,
Hellwig told her that his brother had married the sister of the guy
who had come over to talk to him [1331-38]. Brochu saw John
Reynolds talk to Hellwig more than once that evening [1367-68].

When Kenyon, Hellwig and King got up to leave, someone
from the larger group whom Brochu could not identify insulted
Hellwig, prompting him to respond, “If you have got a problem
with me, then let’s take it outside and we'll take care of it now."

21

A-30

The guy who had insulted Hellwig went back to eating his sub, but
another unidentified guy sitting at a smaller table behind the larger
group's table stood up and said, "Hey, are we gonna take this shit
from them, let’s go get them." Then he and another man who was
sitting with him started heading for the door. Significantly, although
Hellwig had identified John Reynolds for Brochu a short time
before, she did not claim that Reynolds was the guy who stood up
and urged the group to go after Hellwig and his friends [1338-39].

As the two men from the smaller table proceeded toward the
door, Ray Seeley (the cook) tried to stop them, to no avail. The
larger group then left the restaurant, followed a short time later by
Robert and Jack Doxey and her fiancé, Jim Cheesman [1339].

Several people in the large group also explained the events
of October 22, 1994, to the trial jury. At 9:00 p.m., Shawn
Haggerty (who plead guilty to Manslaughter in the Second Degree
in this case) met his twin brother, Shane, and a number of other
friends at Kerrie Haggerty's apartment: Matt Sweatland, Suzie
Haggerty, Kerrie Haggerty, Suzie Shea, Troy Fusco, Brian
Mooney, and Brian's friend, John Reynolds. Just about everyone
was drinking beer and after a couple of hours they decided to go to
"Granny Arona's," a bar in Olean -- though Shawn could not say
whether John Reynolds went with them. After drinking beer for an
hour and a half, Shawn rode to the Haskell Inn with Cory and Susan
Shea [1077-81, 1113].

The entire group ended up at the Haskell Inn, including
John Reynolds. They stayed there until the bar closed at 2:00 a.m.,
then Shawn and all his friends went to the East Side Pizzeria to get a
bite to eat. Reynolds went with them, but Shawn did not know how
he got there. The group entered and sat at a table in front of the
cashier. They may have used more than one table because one
could not accommodate everybody. Reynolds was seated at his
table [1082-86].

22

-A-31 |

As they sat at the table, Shawn saw three guys walk into the
restaurant. One of them had a "real red eyeball” which caught
Shawn's eye. Having a "little buzz" from the four or five beers he
had consumed that night, Shawn turned to his brother Shane and |
said, "Look at this guy's eye," but neither he nor any of his friends p
said anything vulgar to the man, who Shawn later found out was
Kevin Kenyon [1082-89].

As Kenyon approached their table, Shawn's twin brother,
Shane, told Shawn to stand up. He did and Kenyon got close to his
face and asked if Shawn had a problem. Shawn responded, "I don't
want no problem.” During this confrontation, Steven Hellwig was
talking to someone at his table, but Shawn did not know who that |
was [1089-90]. Kenyon challenged Shawn and his friends to a fight,
then walked out the front door with King and Hellwig. The three
guys just stood outside looking in through the front window and
Shawn's group ignored them. When they finally came back inside,
Gayle Wheeler told the three that she did not want any trouble and
that they were to sit on the other side of the restaurant. She also
approached Shawn and his friends and warned them they would
have to leave if they caused any problems. They assured her that
there would be no trouble [1091-94].

Kenyon, Hellwig and King sat themselves at the counter
near the kitchen. Shawn could not recall any comments being —
traded back and forth between the two groups as he and his friends
ate and talked. More specifically, Shawn did not hear John
Reynolds say anything to the three guys at the counter. Just as they
finished eating, Kenyon, Hellwig and King went to the cash register
to pay their bill. The two groups were within touching distance of
each other. After paying the bill, the three men turned around to
face Shawn's group and both Kenyon and Hellwig challenged them
to a fight outside. One of them - although he cannot say who --
said, "When you guys come outside, we are gonna kick your ass”
(1095-96, 1116].

23

A-32

After the three men left the restaurant, Shawn heard John
Reynolds ask Brian Mooney, "Are you gonna take this shit?"
Mooney -- through whom Shawn knew John Reynolds -- then got up
and ran for the door, but Shawn stopped him. He then exited the
restaurant first and, upon opening the door, Shawn found Kenyon
on the sidewalk facing him. When Kenyon put his hands up and
said, “Are you ready to go?", Shawn punched and knocked him to
the ground before proceeding toward Hellwig and King [1097-98,
1113}.

Shane Appleby pled to Criminally Negligent Homicide in
the death of Kevin King and also testified at trial. He, too, was
drinking with the rest of the group at Kerrie Haggerty's apartment
and at the two bars. While he did not see John Reynolds at Granny
Arona's, Shane did see him at the Haskell Inn. They stayed at the
Haskell Inn until closing, then went to the East Side Pizzeria. Shane
could not say whether Reynolds had been drinking alcohol at either
establishment, but did acknowledge that he himself had been
drinking for a few hours [1121-25}.

Shane rode to the pizzeria with someone from the group and
did not know how Reynolds got there. He sat at a round table in
front of the cash register and Reynolds sat at a smaller table to his
left. The two tables may have been pushed together. Shawn was to
Shane's left and Reynolds was further to the left [1125-28].

Three men walked into the pizzeria, the first with a red eye
which looked as if it had been punched. The guy with the red eye
was staggering and appeared drunk. Someone whispered, "God,
someone hit him," whereupon "Red Eye" approached Shawn
Appleby and asked, "What the fuck are you looking at?" Shawn
stood up and the waitress, Gayle Wheeler, said she did not want
fighting in the restaurant. He then convinced Shawn to sit down
[1128-30]. y

24

A-33

While he could not recall the three guys leaving the
restaurant at that point, Shane later saw them sitting at the counter.
He denied that words were exchanged between the two groups.
Eventually, the guys at the counter got up to leave and one of them
approached the table and said, "All right (sic), you want to fuck with
us, let's go outside right now." Shane thought John Reynolds then
said, "Are you gonna take that shit?", and Brian Mooney stood up
and made a comment about the guy's beard [1131-36].

Shawn Appleby was the first to follow the three men out the
door to confront them. Shane was right behind Shawn and he did
not know who came out after them, but, without doubt, John
Reynolds did not lead a charge out the door [1137-38].

Carl Hollamby was also with Shane Appleby and the others
at the East Side Pizzeria. While they were all enjoying being
together, he did not think the group was being obnoxious to anyone.
When Kevin Kenyon, Steven Hellwig and Kevin King walked in,
Shawn Appleby commented on Kenyon's red eye, saying, "Hey,
this must be the kid that got in the fight at the Haskell Inn" [1450-
54]. Kenyon "erupted" and said, “blankety blank, we are going
outside." While Kenyon was outside gesturing through the window
for Shawn to come out, Shawn remained in his seat [1453-54].

Hollamby recalled that Kenyon, Hellwig and King then sat
at a small table near he and his friends. There was obviously some
tension, but John Reynolds just sat there and kept to himself. Brian
Mooney and Steven Hellwig, however, were sitting close to each
other and had a verbal altercation. Gayle Wheeler then moved
Kenyon, Hellwig and King to the counter and Reynolds told
Mooney, "This is my brother-in-law's brother, let's not have any of
this." Things then calmed down and everyone went back to eating
[1454-56].

25

A-34

There was still tension in the air, so when Kevin Kenyon
looked toward their table, Hollamby thanked him for sitting down.
Kenyon responded that he did not have a problem with Hollamby,
but did have a problem with his friends. John Reynolds then went
over to Hellwig and talked with him. When Reynolds returned to
the table, Hollamby and Matt Sweatland left the restaurant, only to
return because Sweatland had forgotten to pay his bill (Hollamby did
not have a bill because he had not ordered anything). Wanting to
leave, Hollamby asked Reynolds for a ride home. Reynolds agreed,
but a few minutes later a "ruckus" started [1455-57].

Trouble started when Kenyon, Hellwig and King walked by.
Hollamby's table. Kenyon said, in substance, to Shawn Appleby,
"I'm gonna be waiting for you outside and we are gonna go."
Shawn told him to leave. When Hellwig got to the door, he turned
around, pointed at Brian Mooney and said, "I'll be waiting for you
too." The three men then left the pizzeria. About twenty seconds
later, someone at the end of the table where Mooney, Sweatland,
Shawn Appleby and Reynolds were sitting said, "Are we gonna take
this shit?" -- but it was not John Reynolds who made the statement
[1458-59, 1470-71]. The entire group then got up and exited the
restaurant, but Hollamby did not know who went out the door first.
When he got outside, Hollamby did not see John Reynolds
anywhere [1459, 1470-71].

Like Hollamby, customer Larry Bedow -- who was not with
either group --. did not hear John Reynolds urge anyone to fight,
though Bedow was seated only ten feet away from Reynolds. He
saw him merely get up and walk calmly to the door [1047, 1058].

Significantly, even Kevin King's close friend, Kevin
Kenyon, did not implicate John Reynolds in King's death. Kenyon
was friends with Steven Hellwig and King and met them at the State
King (a small tavern in East Olean) around midnight. While they
were at the State King, Kenyon drank five to six beers. Hellwig

26

A-35

was also drinking, but Kenyon could not recall whether King was
also. At some point, they decided to go to Haskell Inn and arrived
there shortly after 1:00 a.m. The three men remained at the Haskell
Inn until closing and both Kenyon and Hellwig continued to drink
beer [884-900].

While they were at the Inn, a friend by the name of Andy
John asked that they give him a ride home. After dropping Andy
off at his residence, Kevin King drove the three in Stephen
Hellwig's car to the East Side Pizzeria for breakfast. As they
entered, Kenyon noticed a big crowd of kids and heard one of them
say, "Look what the dog drug in." He knew that the comment was
directed at the three of them, but did not know whether it was meant
for anyone in particular. Kenyon had not had any prior trouble with
anyone in the group and knew John Reynolds "pretty well" from just
seeing him around [901].

Kenyon and his friends sat down at a table to the right hand
side of the door. Further remarks were made to them by individuals
in the larger group. In particular, someone asked, "What the fuck
are you lookin’ at, red eye?" Others called them "scruffy bastards."
They were discussing whether they would remain at the East Side
Pizzeria or go to Perkins when Gayle Wheeler came over and told
them to "Ignore them guys, they have been jerks all night. Come sit
up at the counter." Even after they moved to the counter, members
of the larger group continued to make nasty comments. Kenyon
finally walked over to John Reynolds and said, "Your friends are
being assholes. You should know better, you know" [903-04].
Kenyon could not hear whether Reynolds spoke to the others around
him, did acknowledge that he had never had any previous
trouble with Reynolds and, in fact, said “You're okay" to Reynolds
when he came over to speak with him [914-15, 918, 929).

After returning to the counter, Kenyon went to use the
bathroom. A few seconds later, a tall, blond haired kid from the

27

A-36

larger group—specifically not John Reynolds according to Kenyon --
came into the bathroom and asked, "Are you Kenyon?" When
Kenyon replied that he was, an argument ensued. Kenyon then
went back to Hellwig and King and told them, "There's going to be
some trouble, I know there is." Hellwig and King told him to
simply ignore the others [905-06, 919-20].

While King and Kenyon were still eating, Hellwig got up to
pay the bill. When King and Kenyon joined him at the register,
Kenyon heard Hellwig tell someone in the other group, in substance,
"I'm not gonna fight in a public place" and, "I might not be able to
take all of ya, but I'll take you one-on-one." Hellwig also said, "If
you ain't got nothing nice to say, don't say nothing the fuck at all"
[906-07]. Kenyon then exited the pizzeria with Hellwig and King
through the side door. Kenyon explained that while they were
looking back at the other group as they were leaving, none of the
three said anything to them [908]. Notably contrary to the
prosecution's "ringleader" theme, Kenyon did not recall] John
Reynolds saying an angry word to Kenyon and his friends [917].

Steven Hellwig testified to similar events and also
characterized John Reynolds as a "peacemaker." He had known
Kevin King since they were both about five years old ard they went
out together on the evening of October 22, 1994. Hellwig picked
King up at his house and they drove to Rod Corwin's house in the
town of Olean. Corwin was Hellwig’s friend and they sat around a
bonfire and talked with a couple of friends. Neither Hellwig nor
King had anything to drink before they left Corwin's house between
11:30 p.m. and 12:00 a.m. to go to the State King [932-34].

At the State King, they met Andy John and Kevin Kenyon.
The four tien left that tavern and went to the Haskell Inn where they
had a couple of beers and watched a band play. At approximately
2:15 a.m., King, Kenyon and Hellwig took Andy John home and
then went to the East Side Pizzeria. King was driving Hellwig's car

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because he had had the least amount to drink and Hellwig was tired
from working on a shed earlier that day with both King and Kenyon.
They parked at the front of the restaurant and entered through the
front door [935-36].

As he came through the door, Hellwig noticed a large group
of people seated at three tables. He heard someone say, "Wow,
would you look at what the dog drug in" and, to Kenyon, "Hey,
what's up, red eye?" [937]. While Hellwig and King ignored them,
Kenyon became upset and approached the group to say, "Why don't
you guys leave us alone, we are not bothering you.” Hellwig and
King then dragged Kenyon to a table near the door where they sat
down [937].

Hellwig had never had any trouble with anyone in the other
group and recognized John Reynolds, whose sister was married to
Hellwig's brother. While Reynolds did not say an unkind thing to
them the entire evening, other people he was with began calling
Heliwig and his friends "dirt bags" and "scruffy bums." When one
guy insulted Hellwig further, Hellwig told him to either go outside
to settle it with him or keep his mouth shut. He then walked out the
door with Kenyon and King. While the larger group remained at
their tables, Gayle Wheeler followed them out, but did not ask them
to leave. They discussed going to Perkins, but decided to go back
into the pizzeria because it was closer to home [938-39].

Upon re-entering the restaurant, they sat at the counter
where they continued to be subjected to verbal harassment from the
larger group, although none of it came from John Reynolds.
Kenyon again became upset and told the other group to leave them
alone. Whenever he did this, Hellwig and King would tell him to sit
down and mind his own business because they did not want any
trouble. The problems continued, however, when Kenyon went into
the restroom and was followed in by a blond male Hellwig thought
was Matt Sweatiand. When Kenyon came out, he told them that the

29

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~ blonde guy had said they were "gonna get our asses kicked as soon
as we left." During the course of the evening, Sweatland had been
saying many obnoxious things to them and had gotten in a

face-to-face confrontation with Kenyon, which was _ ultimately
broken up by Hellwig and King [939-40, 992-95].

John Reynolds did come over to Hellwig and say, "Steve,
don't blame me for what my friends are doing here." While
Hellwig simply told him to sit down, Hellwig did recognize that
Reynolds was not angry and was acting as a friend. Being related
by marriage and having fished together in the past, Hellwig
considered Reynolds a pretty good friend. Hellwig was certain that
Reynolds did not say anything nasty to them that night [941, 992-93,
995].

When Hellwig got up to pay for his meal, one of the guys
with the other group -- not Reynolds -- threatened to hold him down
and shave him the next time he saw Hellwig out. Hellwig
responded, "If you guys got a problem with me, we'll go out and get
it settled right now or else your mouth shut and keep it shut every
time I see you out." He then walked out of the restaurant followed
by King and Kenyon. As Hellwig was getting into his car, Kenyon
went up to the window of the restaurant and started to say
something, but was stopped by Hellwig and King who grabbed him
and tried to take him to the car [940].

Hellwig then looked through the restaurant window and saw
John Reynolds heading for the side door through which they had just
left. Just as he was asking John what was going on, someone else
came out the door and came over Reynolds’ shoulder to hit Hellwig.
The next thing he knew, there were people all around him and he
was being beaten. John Reynolds was not one of his attackers
[944-46, 949].

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In sum, the varied recollection of these many witnesses
demonstrated primarily that John Reynolds did not engage in any
name-calling or abusive conduct toward Kevin King and his friends.
In fact, John was on friendly terms with Steven Hellwig and tried to
smooth things over between the two groups. Even Hellwig -- King's
friend -- acknowledged that John approached him as a friend and
asked Hellwig not to blame him for what his friends were doing.
Moreover, Kevin Kenyon -- himself a volatile participant in the
hostilities -- walked over to John and said, "You're okay."

Further, the testimony very clearly showed that John
Reynolds did not lead any type of “charge” out the door after King
and his friends. While, as Gayle Wheeler explained, John did walk
toward the door in order to talk to Hellwig, his sister's brother-in-
law, the "charge," if any, was led by Shawn Appleby (who, by his
own admission, also threw the first punch), followed Closely by his
brother Shane and Brian Mooney.

Il. Altercations Outside the Restaurant

The descriptions of the physical confrontations in the
parking lot of the East Side Pizzeria varied from witness to witness,
but one important fact remained constant: in this wholly
circumstantial case, not a single witness saw John Reynolds strike,
punch or kick anyone, much less Kevin King. Judging from the
verdict, John Reynolds’ only mistake was being present in an area
where fights were occurring.

Shawn Appleby quite frankly admitted that he punched out
Kevin Kenyon and Kevin King. First, as he left the restaurant,
Shawn saw Kenyon standing on the sidewalk facing him, with
Hellwig and King behind him. When Kenyon put his hands in the
air and said, "Are you ready to go?", Shawn punched him so hard
that Kenyon fell to the ground. He then moved past Kenyon to get
at Hellwig and King. When those two separated, Shawn went after

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Kevin King and landed a powerful blow to the area of King's
mouth, causing King to "crumple” to the ground near the driver's
side front quarter panel of a red pickup truck. Shawn saw his
brother, Shane, take a swing at King, but did not know if he, too,
connected [1097-98]. .

While he stood over Kevin King, Shawn Appleby saw
Kevin Kenyon lying partially on the sidewalk and Steven Hellwig in
a fight immediately in front of the pickup truck. In the
approximately seven foot distance between Shawn and the front of
the truck, there were several people fighting. Hellwig came toward
him and said, "How about some one-on-one," so Shawn knocked
him to the ground with one punch [1099-1103, 1118-20].

Although in his plea colloquy he had said John Reynolds
was in this seven foot area where everyone was kicking and
punching, Shawn acknowledged that he did not see John punch, kick
or strike anyone, particularly Kevin King; he was simply in an area
where a fight was occurring. In fact, at no time did Shawn either
hear John Reynolds request or command someone to punch, kick or
strike anyone or see him aid anyone in punching, kicking or striking
somebody else.

Kevin Kenyon gave a slightly different description of the
fight, except in one respect; he, too, did not see John Reynolds
strike Kevin King at any time. As he was walking to the car after
leaving the building, Kenyon felt a blow to the back of his head. He
fell to his knees and another punch knocked him to the ground. He™
lay there covering his face and continued to be punched and kicked.
When Kenyon attempted to get up, he was only knocked down
again. He could not say who was striking him [908-10].

Kenyon also did not know what was happening to Hellwig
and King during this time. In particular, he did not observe John
Reynolds or anyone else striking his friends. When the fighting

32

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le a ae

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stopped, Kenyon lifted his head and saw Steven Hellwig on the hood
of his car and Kevin King lying on the ground. Kenyon sustained a
split lip, sore back and ribs, and a "soft spot" on his head, but did
not seek treatment until a week later [910-12].

Steven Hellwig's involvement in the physical altercation
began when he approached John Reynolds outside the pizzeria to ask
him what was going on and, as John started to answer, another guy
came over John's shoulder and started hitting him. Hellwig was
then surrounded by people who were punching him from every
angle. He was pushed up against the back of a truck during the
course of the fight and several people continued to beat him. When
the fight was over, Hellwig walked to the front of the truck and saw
Kevin King lying on his stomach in the parking lot. It appeared he
was trying to get up, but when Hellwig asked if he was all right,
King only groaned [946-51].

As Hellwig looked for his glasses around the front of the
truck, he told "them guys" that they were "gonna pay for this." A
guy in a tan sweater then ran over and punched him in the head and
others pushed him up against his car (which was parked right next to
the truck) and beat him again. When this second confrontation
ended, Hellwig kneeled over King to check on him, but Gayle
Wheeler grabbed him by the shoulder and told him to get away from
King [951-52, 962, 974].

During questioning by the police at the scene, Hellwig told
Officer Sean Obergfell that he did not see John Reynolds do
anything and, the next day, he also told his brother that he did not
see John in the fight. When asked at trial whether he had told other
people that John Reynolds was not involved in the fight, Hellwig
responded, "From what I seen, he wasn't." Hellwig was, however,
able to tell the Sheriff's Department that Shawn Appleby and Cory
Shea attacked him and informed investigators that Pam Brochu had
seen Brian Mooney strike him [985-86, 1000-01].

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Notably, when Hellwig gave the statement identifying
Appleby, Shea and Mooney as his attackers, he made no mention of
John Reynolds being involved. Moreover, as he advised the trial
jurors, Hellwig not hear John say anything unkind to anyone that
night and he also never heard John direct, command or encourage
anyone to fight. Further, Hellwig did not see John aid anyone in the
fight [992-93, 1001, 1006-07].

Shane Appleby also did not see John Reynolds in a physical
altercation that evening. He recalled following Shawn out the door
and seeing him punch Kevin Kenyon to the ground before running
over to Kevin King and hitting him. Shane also landed a blow on
King and watched him fall to the ground in the middle of the
parking lot (as opposed to in front of the pickup truck parked near
the corner of the restaurant building, as described by his brother).
During the incident, Shane saw John Reynolds walking around
another fight going on between two vehicles near the corner of the
building, but did not see him take part in the melee. Shane was
certain it was John Reynolds and did not observe him punch or kick
anyone [1138-39, 1142-44].

John Reynolds' non-involvement in the fight which led to
Kevin King’s death is also borne out by Carl Hollamby's
observations of the incident. Hollamby ran out of the pizzeria with
the rest of the group, but did not see John Reynolds anywhere. He
did, however, see Cory Shea and Brian Mooney fighting Steven
Hellwig near the corner of the building and Kevin King lying
motionless on the ground. Not wanting to be near the fighting,
Hollamby then went back inside the restaurant [1460].

When Hollamby heard sirens, he ran back out and saw King
still lying in the same position. Thinking King was unconscious,
Hollamby yelled to his friends, "Let's go, they're gonna arrest some
people here for assault." He then ran to a building next to the
pizzeria, where he realized no one had followed him. Going back to

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A-43

the pizzeria, Hollamby saw Hellwig kneeling near King and heard
Hellwig challenge Shawn Appleby to go "one-on-one" with him.
They started struggling behind a truck and continued until Brian
Mooney and Kerrie Haggerty came over to pull Shawn out of the
fight because the police were coming. Hollamby then joined
Mooney and Haggerty in a flight from the scene. During all of this,
Hollamby never saw John Reynolds and never heard him command,
solicit or encourage anyone to fight [1460-65]. He also pointed out
that although there were ten people in his group, not all of them
fought [1466].

Larry Bedow saw both groups leave the restaurant, and
stayed at the counter for less than a minute before going outside to
see if there was anything he could do. Upon exiting the building, he
saw Kevin King lying on the ground near a truck. Everyone was
running around, but no one was assaulting King. Bedow checked
King's jugular and found he had a pulse and was breathing. As he
was doing this, Steven Hellwig was on the other side of the truck
fighting two men [1032-37].

Bedow walked back into the restaurant and saw Gayle
Wheeler on the telephone. He immediately went back out and saw
Pam Brochu pushing one of the girls who was with the large group.
When Bedow told her that she did not need to start up anything else,
Brochu replied, "Well, the bitch doesn't need to be kicking him
either." Bedow then checked King again and found that he had not
come to, but did have a pulse [1037-38, 1050].

During the five to seven minutes Wheeler was on the
telephone, Bedow watched the fighting. Even though he was
focused on the skirmishes during this lengthy period, he did not see
John Reynolds anywhere and did not see anyone punch or kick
King. In fact, during the entire time he was outside, Bedow never
saw John Reynolds near Kevin King, or anywhere else for that

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A-44

matter. He also did not hear John direct, command, solicit or
encourage anyone to fight [1050-53].

When she saw everyone going outside, Gayle Wheeler
immediately called 911. After notifying the police, she walked out
to see what was happening and observed a "bunch of people kinda
crowded all together and down on their knees and on their feet and
saw fists flying and feet swinging" in front of Jack Doxey's truck.
The people in this group were not laying on top of anyone, but were
leaning in and reaching over each other. Wheeler could not tell how
many were in the bunch and could not see their faces. She did not
see who they were hitting or kicking [1421-23, 1431].

The group broke up when someone yelled that the police
were coming. Wheeler saw Shawn and Shane Appleby, Brian
Mooney, Cory Shea, the two Haggerty girls, Pam Brochu and John
Reynolds as the group dispersed. She assumed that Reynolds had
been with all the people crowded together in front of Doxey's truck
simply because she saw him running away from the area of the
fight. However, Wheeler did not see John Reynolds punch or kick
anyone or even attempt to do so, and admitted that she did not see
him anywhere during the fight. When everyone left, she saw Kevin
King lying beneath Steven Hellwig [1423-28].

Assuming that people were fighting outside, Jack Doxey left
the pizzeria to check on his brand new red and silver pickup truck.
As he approached, Jack saw people fighting between the passenger
side of his truck and a car parked next to it. He did not notice who
was involved in the altercation and just wanted to move his truck.
Jack decided to leave the truck alone because he was afraid someone
might be beneath it and started to return to the restaurant when he
saw two guys fighting at the corner of the building. Neither of them
was John Reynolds and, when Jack told one to stop beating up on
the other, the guy simply picked Jack up and started carrying him
toward the front of the restaurant [1160-62].

A-45

Just then, Jack's father -- Robert Doxey -- came out to
check on him. The guy holding Jack put him down and grabbed his
father. As the two fought, another guy came from behind some cars
with a beer bottle which he used to strike Robert in the head. Jack's
father and the two guys he was fighting with then disappeared inside
the restaurant. When Jack looked back toward the front of his
truck, he saw a person in a red and black flannel shirt lying on the
ground "getting kicked and stuff like that." The kicking went on for
about thirty seconds and was done by several people whom Jack
could not identify by name [1162-64].

After checking on his father, Jack came out of the restaurant
and saw people still fighting. The fight continued for about another
minute, then stopped. The guy in the red and black flannel shirt was
still lying on the ground near the driver's side front tire of his truck
[1165].

In April 1995, Jack Doxey gave a statement to the State
Police in which he stated that the guy in the red and black flannel
shirt was being,

kicked by a girl with black hair, dressed in black.
A blonde girl, they call her Keri, and there were at
least two or three guys from that table of nine, but
I'm not sure who they were. And that "Sweatiand,
who I know, is near that group but I'm not sure
what he was doing."

Jack did not see John Reynolds in the group or even hear his voice
outside that evening and he did not see Reynolds fight anyone or
even challenge anyone to fight [1170-73]. Significantly, while most
people ran to their cars and peeled out of the parking lot when the
fight ended, Jack saw John Reynolds remain at the scene for a time
and then walk calmly to his car. He was not out of breath, his

37 -

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clothes were not torn, and he did not appear to have been in a fight
[1173-76].

Robert Doxey identified Cory Shea as the one who had hold
of his son and then attacked him. After Jack pulled him out of the
fight, Robert went into the bathroom to look at his bleeding nose.
When he came back out of the bathroom and stepped outside to see
what was going on, Robert saw a group of people standing in front
of Jack's truck and other people just standing around watching. In
the group in front of the truck, he could see some kicking through
the “standing legs." He initially thought they were kicking
something fluffy -- like a pillow -- but when the group dispersed at
Gayle Wheeler's insistence, Robert saw Kevin King lying on the
ground with Cory Shea standing above him talking to Wheeler
[1196-1203].

Robert did not see John Reynolds at the corner of the
building where the fighting occurred. Indeed, he did not see John
from the time one of the Applebys ran out the door after Steven
Hellwig until all the fighting was over and he saw John with his
truck at the nearby Baer Auto Parts. John did not appear to have
been in a fight and did not peel out of the parking lot when he left.
Robert Doxey candidly admitted that, as far as he knew, John
Reynolds could have been just watching the fight [1207-09].

Ray Seeley got a good look at the fight from about ten feet
away and, although he was able to identify several people in the
fight between the corner of the building and the pickup truck and
car, he did not see John Reynolds involved in the melee. Seeley
saw six to eight people fighting and recognized Cory Shea, Shawn
Appleby, Shane Appleby, and Keri Haggerty as participants.
Another girl was participating in the fight, but he did not know her
name. After the group dispersed he saw that Kevin King and Steven
Hellwig had also been part of the altercation. Hellwig was lying
with his torso across King's upper body and both he and Wheeler

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helped Hellwig up. Seeley did not, however, see John Reynolds
anywhere until the fight was over and John drove by the restaurant
in a pickup truck. Seeley also did not hear John direct or encourage
anyone to fight that evening [1381-88, 1392-94, 1397-1400].

Pam Brochu also gave specific testimony as to who was
involved in the fights outside the pizzeria. About five minutes after
both groups left the restaurant, Brochu went out through the side
door and saw Kevin King on his knees to her right being beaten by
two men. Directly in front of her, Steven Hellwig was in a fight
with three guys. After Larry Bedow intervened in Hellwig's fight,
Brochu saw four males and one female striking King. She conveyed
this information to the State Police the day after the incident. In a
follow-up statement to investigators in April 1995, Brochu identified
the five as Keri Haggerty, Brian Mooney, Shawn Appleby, Shane
Appleby and Matthew Sweatland. Shawn and Shane were definitely
kicking Kevin King [1342-43, 1351-52, 1355, 1360, 1362-64,
1369].

Brochu acknowledged before the trial jurors that she could
not testify that John Reynolds was involved in the fighting outside
the pizzeria. She saw him only after the fighting was over when he
was getting into his truck and Gayle Wheeler told him not to leave.
John replied, "I had nothing to do with this." In her statements to
the State Police, Brochu never mentioned that John was punching or
kicking Kevin King, but she did give the names of the four men and
one woman who she did see beating King [1350, 1353, 1361, 1369].

As illustrated by the foregoing, not a single one of the many
witnesses to this incident testified that John Reynolds fought anyone
or encouraged anyone else to fight. This is consistent with the
statement John gave the next morning to the Cattaraugus County
Sheriff's Department. Voluntarily appearing at the station house at
7:45 a.m., John was interviewed by Lieutenant Detective Dennis
John. In response to the detective's questions, John described events

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inside the restaurant after Steven Hellwig arrived with Kevin
Kenyon and another guy John did not know. He explained that
when he and his friends left the restaurant "all hell broke loose."
There were people fighting all over, but he did not get involved and
could not say who was hitting who. The fighting lasted about five
minutes and he got into his truck to leave after it was over. Just
then, the police arrived, so John parked his truck and told Officer
Sean Obergfell what had happened [1212-19].

During the interview, Detective John did not observe any
indications that John Reynolds had been in a fight. In particular, the
detective did not see any bruises or scratches on John's face and
hands [1221-22].

On April 28, 1995, John Reynolds voluntarily returned from
a job site in Pennsylvania to speak to State Police Investigators
Donald Rieger and Paul Jackson about the events of October 22,
1994. No written statement was taken, but the investigators did
keep notes of the interview. John explained that he and a group of
friends went to the East Side Pizzeria between 2:00 and 2:30 a.m. to
have breakfast. Investigator Rieger recalled that John indicated that
three other men then walked in and one received some harassment.
The three got up from where they were sitting and went outside,
only to return and sit at another location in the restaurant. Some
further harassment occurred, but there were no further problems.
However, when the three guys left, one of the Applebys was the
first one out the door after them [1225-29].

According to Investigator Rieger's recollection, John
explained that when he left the building he went to "the point,"
which John explained was the point where the corner of the building
met the sidewalk corner. He stood just off the sidewalk and
watched three fights, but did not himself get involved. John told the
investigators that he saw Brian Mooney, Keri Haggerty and Cory
Shea in a fight with Robert Doxey, Shawn Appleby fighting first

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Kevin Kenyon and then Steven Hellwig, and Matthew Sweatland
fighting with Hellwig (1229-31, 1234-36].

John Reynolds has maintained his non-involvement and his
innocence since day of the incident. None of the evidence presented
at trial -- whether testimonial or physical -- refuted his assertion of
innocence.

Ill. The Medical Evidence

Dr. Justin Uku, Chief Medical Examiner for the County of
Erie, conducted the first autopsy of Kevin King on October 23,
1994. After Dr. Uku came to conclusions as to the cause of death
with which the People were not happy, the prosecution brought
Dr. Michael Baden in to perform a second autopsy. Not
surprisingly, his findings differed dramatically from Dr. Uku's.
Upon review of the second autopsy findings, Dr. Uku changed his
determination of the cause of death to conform to Dr. Baden's
conclusion.

Prior to the autopsy, Dr. Uku was advised that the time of
death was 4:32 a.m. and that Kevin King had been in a fight and
was found at the bottom of a pile of people. The autopsy revealed
that King had an abrasion on the right side of his forehead and two
small abrasions on the bridge of his nose. His face and lips were
blue and he had some blood in one of his nostrils. Dr. Uku also
found bleeding in King's right eyeball [1256-61].

Dr. Uku found no skull fracture, but he did observe
hemorrhaging in the chest, abnormal flexibility of the sternum, and
frontal rib fractures, all of which caused him to inquire as to
whether CPR had been performed -- which it had [1263-66].
Dr. Uku felt that CPR had caused the chest and rib injuries
[1265-66].

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In light of the information that King was found at the bottom
of a pile, and given the blueness of his face and the hemorrhage in
his right eye, Dr. Uku concluded that death was caused by traumatic
asphyxia resulting from a heavy weight being placed on King's chest
[1261-62].

Approximately seven months later, Kevin King’s body was
exhumed and a second autopsy was performed by Dr. Baden on
April 17, 1995. During the course of this procedure, Dr. Baden
saw no injuries to the arms, forearms or hands indicative of
defensive or offensive wounds, but did observe three bruises on
King's left chest which were not present when Dr. Uku examined
the body. Dr. Uku may not have observed the bruising because he
performed the autopsy before the body had rested for twenty-four
hours, the point at which bruising may become more prominent due
to settling of the blood in the body [1284-92].

Dr. Baden also found five rib fractures, but attributed only
two of the fractures -- those which were not surrounded by
hemorrhage -- to CPR. Around the remaining three rib fractures he
found significant hemorrhaging which he did not believe was caused
by the prior autopsy. This indicated to Baden that the heart was still
actively beating when the hemorrhaging occurred, though the record
reveals no basis for his further conclusion that the heart was not
beating at all during CPR. Dr. Baden also felt that these three
fractures were "not quite where one gets fractures from CPR" and
concluded that they were caused by blunt force trauma [1292-95].

Further, upon reflection of the skin around the right eye
(which had not been done by Dr. Uku), Dr. Baden observed a
prominent hemorrhage which did not show through the skin. He
also found bruising in King's mouth. While external examination of
King's back did not reveal any bruising, when Dr. Baden made an
incision at the midline of the lower back he found an area of

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bruising which could also have Yeen caused by blunt force trauma
[1296-97].

In light of these observations, Dr. Baden concluded that
Kevin King's death was caused by muitiple blunt force injuries to his
head and chest. He opined that the injuries to the chest caused
King's heart to beat irregularly, resulting in fatal cardiac arrhythmia.
He posited that the head injuries did not cause death and that King
may have been lying on the ground when the chest and rib injuries
occurred [1310-11].

Notably, however, Dr. Baden admitted that nothing in his
findings would preclude Dr. Uku's original diagnosis of death by
traumatic asphyxia, but he felt such a cause to be unlike'y
[1317-20].

Amazingly, when Dr. Uku reviewed the report of the
second autopsy he decided to change his conclusion as to cause of
death to conform to Dr. Baden's opinion. At trial, Dr. Uku could
explain his abandonment of the traumatic asphyxia determination
only by claiming that CPR could not have caused the rib fractures
and was unable to give an explanation of why he came to that
conclusion in light of his previous determination that CPR was the
cause of the chest and rib injuries. He also felt that the hemorrhage
around King's right orbit extended into the right eye, a fact of which
he was unaware after the first autopsy and which suggested to him
that the bleeding in the right eye was not cased by asphyxia.
Dr. Uku did admit, however, that during the first autopsy he found
all three indicators for asphyxia: (1) congestion of blood in the
Organs; (2) cyanosis (blueness or purple color due to lack of
oxygen); and (3) tiny pinpoint hemorrhages. Because organs
decompose after burial, Dr. Uku acknowledged that Dr. Baden
would not have an opportunity to observe cyanosis or congestion
(1269-75, 1278].

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POINT I

THE TRIAL COURT'S REFUSAL TO INSTRUCT
THE JURY ON THE MORAL CERTAINTY STANDARD
IN A WHOLLY CIRCUMSTANTIAL CASE AND ITS
FAILURE TO PROVIDE EVEN THE MOST MINIMAL
DEFINITION OF CIRCUMSTANTIAL EVIDENCE
REQUIRES REVERSAL OF APPELLANT'S CONVICTION
AND THE GRANTING OF A NEW TRIAL

As exhaustively detailed in the Statement of Facts, supra,
the proof against John Reynolds was wholly circumstantial with not
a shred of direct evidence upon which the verdict could be based.
Consequently, appellant submits that the trial court was required to
instruct the jury that appellant's guilt must be established to a moral
certainty and in accordance with the rule of circumstantial evidence.
The failure to so charge left the jury without proper guidance as to
how circumstantial evidence should be evaluated, requiring reversal
of appellant's conviction for manslaughter in the second degree.

Appellant raised this issue before the trial court in a motion
pursuant to §330.30 of the Criminal Procedure Law. The court
ultimately denied the motion, ruling first that trial counsel may not
have preserved the claim by requesting a "circumstantial evidence
charge" and second that direct evidence of appellant's guilt was
introduced at trial. The court reasoned that appellant's alleged
Statement inside the restaurant -- "Are we going to take this shit?" --
constituted direct proof of John Reynolds’ reckless state of mind
[1811-12]. The trial court also stated that “[tJhere was further
direct evidence that defendant then led a charge of ten people out the
door to confront three people in the parking lot. Given the
hostilities that had occurred inside, a reasonable jury could consider
that conduct reckless" (emphasis added) [1812]. The court
emphasized that the lack of direct evidence of John Reynolds’
participation in the beating of Kevin King was not dispositive of the

A-53

issue because the jury could have found reckless conduct by virtue
of appellant's alleged "leading of the charge outside combined with
the events which occurred outside” [1812].

As a preliminary matter, the preservation issue alluded to by
the Cattaraugus County Court does not exist. The record
unequivocally establishes that trial counsel made a clear and
unambiguous request for the expanded circumstantial evidence
charge. The trial court itself put appellant's request on the record,
stating:

The defense has requested a circumstantial evidence
charge. I have reserved on that until tomorrow.
My feeling at this point that there is some direct
evidence which I think is all it takes to remove that
charge, but I will again review that [1442].

Just before the commencement of summations, the court
revisited the charging issues: ". . . the defense has asked for the
circumstantial evidence charge, which I also decline to give. I just
don't view this as a circumstantial evidence case" [1481].

Appellant submits that, in light of the trial court's own
words, there can be no dispute as to the nature of the circumstantial
evidence charge requested by trial counsel. The court clearly
understood that counsel desired the expanded moral certainty charge
on the ground that the proof against appellant was wholly
circumstantial. Moreover, in placing the charging conference on
the record, the trial judge evinced his understanding of the nature of
the defense request by indicating that he believed a circumstantial
evidence charge was not warranted because there was some direct
evidence in the case [1442].

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A-54

To now suggest that trial counsel was not clear enough in
his request is disingenuous. At the time the instruction was
requested, the court clearly understood that appellant wanted the
jury to be instructed on the moral certainty review standard.
Accordingly, appellant respectfully requests that this Court find that
the issue presently before it has been squarely preserved.

With respect to the merits, the trial court's decision reflects
a misapprehension of the nature of circumstantial evidence.
Appellant was convicted of violating §125.15(1) of the Penal Law
which states:

A person is guilty of manslaughter in the second
degree when:

(1) He recklessly causes the death of another
person.

In ‘relevant part, Penal Law §15.05(3) defines "recklessly" as
follows:

A person acts recklessly with respect to a result or
to a circumstance described by a statute defining an
offense when he is aware of and consciously
disregards a substantial and unjustifiable risk that
such result will occur or that such circumstance
exists. The risk must be of such nature and degree
that disregard thereof constitutes a gross deviation
from the standard of conduct that a reasonable
person would observe in that situation

Consequently, the petit jury was required to determine
whether the proof established beyend a reasonable doubt (1) that
appellant was aware of and consciously disregarded a substantial and
unjustifiable risk that his conduct would cause the death of Kevin

A-55

King, (2) that appellant's disregard of the risk of death to King was
a gross deviation from the standard of conduct that a reasonable
person would observe in that situation, and (3) that appellant did, in
fact, cause the death of Kevin King. The jury was so instructed in
the trial court's final charge [1545-49].

Fisch_on New York Evidence Provides an appropriate
framework for this discussion. The nature of circumstantial
evidence is set forth quite simply as follows:

Circumstantial proof is the process of establishing a
Proposition by means of an inference drawn from
the assertion of another proposition . . .

All evidential proof is accomplished as a result of
one or more inferences to be drawn from the
evidence to the facts in issue. If the only inference
involved is one from the assertion of the fact to the
truth of the matter asserted, the evidence is
testimonial, or as it is sometimes termed, direct.
But if, in order to assert a Proposition as true or
probable it is necessary to draw any other
inference, then the proof is circumstantial. For
example, in order to establish that the accused is the
person who murdered X, a prosecution witness
testifies that he saw the defendant stab the deceased.
This is testimonial [direct] evidence; it involves
only a testimonial [direct] inference. But when a
witness, in the same case, testifies that the accused
offered him money as an inducement to absent
himself from the trial, the evidence, although based
on testimony and involving a testimonial [direct]
inference, is circumstantial, for in order to reach a
conclusion of guilt it becomes necessary to draw
another inference of a different kind, namely an

47

I i

A-56

inference from the attempt to bribe to a
consciousness of guilt, which in turn is used as the
basis for an inference of guilt.

Fisch on New York Evidence, Section 161 (2d Edition).

That the "direct evidence" pointed out by the trial court in
denying appellant's CPL §330.30 motion was actually circumstantial
in nature is self-evident. For instance, even if it is assumed that
appellant made the statement attributed to him -- "Are we going to
take this shit?" -- that comment was not direct evidence showing
John Reynolds caused the death of Kevin King. As appellate
counsel pointed out during argument of the motion below:

You can take that any way you want but [there are]
three ways to manifest not taking this shit, Your
Honor, and one way is to get out of there so you i
don't have to take this shit anymore. Number two
is to say something back so that I’m not taking this
shit, I'm giving it back to you. Third way is to kick
the shit out of someone. There [are] three ways to
do it and I submit to you that it requires an
inference to figure out which way. And that's why
the circumstantial evidence rule was necessary and
something should have been given to them
(emphasis added) [1753].

_" EN a ae eee ae a ee

The same common sense argument demonstrates that
testimony to the effect that John Reynolds was the first of ten people
to go out the restaurant door provides no direct evidence that he
caused Kevin King's death, recklessly or otherwise. The only way
such testimony has any bearing on appellant's involvement in King's
death is by way of inference; the mere fact of his leaving first means
nothing standing alone. Only when the trier of fact infers John
Reynolds’ intent or purpose in leaving the restaurant can the link to”

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A-57

causation be made. A perfect illustration of this fact is the trial
court's own need to characterize appellant as "leading the charge"
outside. The court inferred from appellant's alleged physical
conduct that he was somehow acting as a "ringleader" of the attack
on Kevin King. Moreover, even such an inference could not
establish causation without the benefit of the further inference that,
in "leading the charge," John Reynolds was aware of and
consciously disregarded a substantial risk that his conduct would
cause the death of King.

In erroneously concluding that the jury was presented with a
mixture of direct and circumstantial evidence, the trial court failed to
address the merits of appellant's argument that a moral certainty
charge was an absolute necessity in this case and that its omission
constituted grievous error mandating that the verdict be set aside and
a new trial granted. That such a charge should have been given
cannot be gainsaid. As evidenced by the factual summary above,
the proposition that John Reynolds caused Kevin King's death is
supported by nothing but conjecture and _ inference. The
prosecution's painstaking presentation of evidence did not reveal a
single witness who could honestly say that appellant ever laid a hand
on King. Not one person saw appellant punch, kick or strike
anyone during the entire evening at the East Side Pizzeria. Of all
the witnesses who saw a group of people kicking and punching
Kevin King, not @ single person could identify John Reynolds as one
of the people attacking King. Indeed, to the contrary, prosecution
witness Pam Brochu established conclusively that appellant was not
in the group attacking King. She testified that she saw five people in
that group and identified them as Kerrie Haggerty, Brian Mooney,
Shawn Appleby, Shane Appleby and Matthew Sweatland [1369].
Furthermore, at no time did any witness hear appellant exhort or
encourage anyone to fight and appellant was never seen aiding any
other person in a fight.

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The need for an instruction concerning the proper evaluation
of circumstantial proof and the permissible manner in which
inferences may be drawn is plain and the failure to so charge the
jury constitutes reversible error. Indeed, in People v. Sanchez, 61
N.Y.2d 1022, 475 N.Y.S.2d 376 (1984), the Court of Appeals
reversed a murder conviction because the trial court refused
defendant's request for a "total circumstantial charge" based upon ;
the defendant's statement that he was present at the victim's
apartment on the night of the murder and hit her twice after she
made offensive remarks to him. The Court of Appeals advised that
the defendant's statements constituted "circumstantial," rather than
direct, evidence of guilt since the decedent was strangled by a
telephone wire:

Respondent's statements constituted circumstantial,
not direct evidence of guilt. Since the case was
submitted to the jury on the theory that the cause of
death was strangulation by a telephone wire, the
key issue for the jury's determination was the
identity of the strangler. Respondent's statements
may have proved his presence at the scene of the
crime close in time to its commission, but the fact
of his presence did not establish that he was the
strangler. While it may at times be appropriate to
leave to the jury the question whether an admission
is direct or circumstantial evidence (cf., People v.
Rumble, 45 N.Y.2d 879, 410 N.Y.S.2d 806), such
deference is inappropriate where, as here, the
admission cannot be interpreted to establish the act
charged. Thus, the evidence: against respondent
was entirely circumstantial and the trial court erred
in refusing to so instruct the jury.

Id. at 1023, 475 N.Y.S.2d at 377.

A-59

Similarly, the prosecution's efforts to pin culpability for
Kevin King’s demise on John Reynolds simply on the basis of
statements attributed to him and his mere presence in the Vicinity of
the fight mandated the giving of such instructions in the instant case.
Witness observations established only that appellant was present at
the crime scene. This Court, however, has made clear that proof of
presence alone is circumstantial evidence requiring application of the
moral certainty standard. People v. Mickewitz, 236 A.D.2d 793,
654 N.Y.S.2d 221 (1997). In Mickewitz, this Court held that a
circumstantial evidence charge was mandated because, while the
proof at trial showed that the defendant and his cousin were in the
truck from which a fatal shot was fired, there was no proof that the
defendant fired the-shot or held the shotgun:

The prosecution's case rested only upon direct
evidence of the collateral facts that defendant and
his cousin were in the truck from which the fatal
shot was fired and that the barrel of the shotgun was
sticking out of the window on the driver's side.
There was no proof, however, that defendant fired
the shotgun or even that he, rather than the
passenger, was holding the shotgun. Thus, because
the evidence of defendant's guilt was entirely
circumstantial, the failure of the trial court to
instruct the jury that it must apply the moral
certainty standard of proof may not be deemed
harmless.

Id. at 793, 654 N.Y.S.2d at 222.

The Reynolds' jury was also allowed to consider whether
appellant's guilt had been proven under a shared intent theory (Penal
Law §20.00) [1554-57]. In short, the jury could find guilt if it
concluded beyond a reasonable doubt that John Reynolds (1) shared
the mental state required to commit the crime “Tin this case,

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A-60

recklessness], and (2) solicited, commanded, importuned or
intentionally aided the others in committing the conduct alleged to
constitute the crime.

In People v. Comfort, 113 A.D.2d 420, 496 N.Y.S.2d 857
(1985), this Court conclusively established that the circumstantial
evidence rule must be followed even where the theory of
prosecution is based upon "shared intent". In that case, Larry
Comfort told his brother, Joseph, to grab a gun and come with him
in a car because he felt that they were being followed and possibly
would be killed by drug dealers, who were actually undercover
officers. The Comforts' car was subsequently rammed by the car
driven by the undercover officers and Joseph shot at the officers,
killing one and critically wounding the other.

The Comfort indictment charged the defendants with murder
and attempted murder under the theory that they were "intentionally
aiding and being aided by each other". The Fourth Department
ruled that the circumstantial evidence rule was applicable even
though defendant Larry Comfort was charged under the shared
intent theory:

Without adequate proof of shared intent with the
principal actor, there is no basis for finding that
Larry acted in concert with Joseph, the actual killer
(see, People v. McLean, 107 A.D.2d 167, 169, 485
N.Y.S.2d 1019). In addition, where a defendant's
conviction is based entirely upon circumstantial
evidence, as here, the facts from which the
inference of his guilt is drawn must exclude to a
moral certainty every reasonable hypothesis of
innocence (People v. Marin, 65 N.Y.2d 741, 742,
492 N.Y.S.2d 16, 481 N.E.2d 556). No proof was
presented that excluded to a moral certainty the
inference that Joseph spontaneously formed the

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decision to fire the gun or that Larry ever knew of
his brother's intention to kill Van Hall and
Gorenflo. In the absence of such proof Joseph's
homicidal intent should not be imputed to Larry
(see, People v. Bray, 99 A.D.2d 470, 470
N.Y.S.2d 50). Neither was there any evidence that
demonstrated that Larry had a separate, specific
intent to kill the investigators.

Id. at 860.

It is important to note that this Court held that the case was
entirely circumstantial against defendant Larry Comfort even though
he told Joseph to "Grab the gun and come with me. . . the Cubans

his shotgun and put it in the car they were then using. Id. at 859.

Significantly, this Court also tuled that despite Larry's
insistence that Joseph bring a weapon, there was not sufficient
evidence that he shared with his brother an intent to kill the car's
occupants:

Larry's behavior in insisting that they drive into the
night armed with a shotgun does not establish
beyond a reasonable doubt an intent to kill the
Plymouth's occupants nor was there any proof of an
agreement Or common design between the brothers
to kill them. The record is consistent with a
Spontaneous, independent decision by Joseph to
Shoot the undercover officers (see, People vy.
Summerset, 100 A.D.2d 947, 474 N.Y.S.2d 838).
The defendants left Camille's house for the avowed

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A-62

purpose of discovering if Otero and Blanco were
connected with the Plymouth. The act of driving
around Corning with a shotgun is not inconsistent
with that objective and does not prove an intent to
hunt down and kill the investigators.

Id. In the instant case, appellant's alleged comment inside the
restaurant, "Are you going to take that shit?", his possibly walking
out the door first and his presence near the people who were beating
Kevin King certainly does not establish, beyond a reasonable doubt
and to a moral certainty, that he shared an intent to kick the
decedent while he was on the ground, thereby recklessly creating a
risk of his death. The People simply did not present proof which
excluded to a moral certainty the inference that the person or
persons who kicked King while he was lying on the ground
spontaneously and independently formed their decision to engage in
such behavior. In the absence of such proof, a shared intent cannot
be imputed to John Reynolds. Unfortunately, the Court's refusal to
charge the moral certainty standard of proof prevented the jury from
applying the correct legal standard and denied appellant a fair trial.
Further exacerbating this deprivation of fundamental trial protections
is the fact that, in an entirely circumstantial case, the trial court not
only refused to charge the appropriate moral certainty standard, but
also failed to give even the standard definition of circumstantial
evidence. This left the jury ignorant of the most basic
understandings necessary for a fair and reasoned deliberation on the
proof presented.

Given the dearth of any direct evidence establishing John
Reynolds’ guilt, the court's refusal to charge the jury that it must
find that appellant's guilt was proven to a moral certainty to the
exclusion of all other reasonable hypothesis of innocence constitutes
reversible error which cannot be deemed harmless. As this Court
warned in People v. Mickewitz, supra, "[hjarmless error analysis is

inapplicable where the ‘jury could not have known of its duty to

a

ee a a ee a

A-63

apply the circumstantial evidence standard to the prosecution's entire
case’" (People v. Mickewitz, 236 A.D.2d 793, 654 N.Y.S.2d 221,
222, quoting People v. Sanchez, Supra at 1023, 476 N.Y.S.2d 376).
Harmless error review is Particularly inappropriate in the case at
bar, where the jurors deciding John Reynolds’ fate were not even
instructed on what circumstantial evidence was, much less told to
apply the moral certainty standard of review.

Accordingly, appellant respectfully requests that the Court
reverse the judgment of conviction and order a new trial.

POINT II

THE TRIAL COURT VIOLATED CPL §270.35
AND DENIED APPELLANT HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO BE
PRESENT AT ALL CRITICAL STAGES OF THE
TRIAL BY DISCHARGING A SWORN JUROR
WITHOUT CONDUCTING THE PROBING
INQUIRY REQUIRED BY LAW AND BY
MEETING WITH THE JUROR IN THE ABSENCE
OF BOTH APPELLANT AND HIS ATTORNEY

The Court of Appeals long ago prescribed the proper
procedure to be followed in discharging a sworn juror. People v.
Buford, 69 N.Y.2d 290, 514 N.Y.S.2d 191 (1987). This procedure
is intended to protect the defendant's constitutional right to trial by a
legally constituted jury in whose selection the defendant has had a
voice. People v. Ivery, 96 A.D.2d 712, 465 N.Y.S.2d 371. To
that end, when confronted with a potentially unqualified sitting
juror, the trial court "must question each allegedly unqualified juror
individually in camera inthe presence of the attorneys and
defendant." People v. Buford, Supra at 299, 514 N.Y.S.2d at
195-96 (emphasis added). This questioning must probe the juror’s
ability to render an impartial verdict and counsel should be

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A-64

permitted to participate in the inquiry. Id. The court must then
place the reasons for its ruling on the record. Id. Reversal is
required in the instant case because the Cattaraugus County Court
failed to abide by this process when discharging a sworn juror
during trial.

In the middle of trial it was brought to the trial court's
attention that there was a problem involving one of the jurors.
During a recess, the court called the attorneys from both sides and
appellant into his chambers where they heard Cattaraugus District
Attorney's Office Investigator Stouffer explain that,.as he entered
the building earlier that morning, an old acquaintance of his by the
name of Timothy Donovan approached him with an envelope.
Inside the envelope was a note asking Stouffer to intervene on his
behalf on a speeding ticket by taking the enclosed letter to Assistant
Cattaraugus District Attorney Leo Murphy and pleading Donovan's
case. Mr. Donovan was Juror No. 5 [1059-62}.

The prosecutor recommended that the court have
Investigator Stouffer give the letter back to Juror Donovan and
advise him that because Donovan was on the jury he could not get
involved in the situation. Defense counsel took the opposite view,
requesting that the juror be removed because an appearance of
impropriety had been created and, further, because counsel was
concerned that the juror had not disclosed his relationship with
Investigator Stouffer during jury selection [1062-64].

The court concluded that it had to discharge Juror Donovan
and seat the first alternate. While the prosecutor did bring the
requirements of CPL §270.35 to the court's attention, the court
decided not to conduct the required probing inquiry of the juror's
fitness to remain on the jury. Instead, the court told the attorneys
and appellant to leave chambers and then had Juror Donovan
brought in. Far from conducting any inquiry, the court simply told
Juror Donovan that "the defense, as you can imagine, has some

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A-65

concerns, you know, about that and they are afraid and they have
asked that I take you off the jury and I think under the
circumstances, I don't really have much choice." They then
engaged some small talk [1064-74]. No findings were put on the
record.

The Cattaraugus County Court's actions were a gross
violation of both CPL §270.35 and appellant's right to be present at
all critical stages of the proceeding. In Buford, the Court of
Appeals made it unmistakably clear that not only must the juror be
questioned as to his ability to act as a fair and impartial juror, but
that this inquiry mist be done in the presence of the defendant and
his counsel. This comports with New York's long held recognition
that criminai Jefendants have a fundamental due process right to be
present with counsel at all material stages of a trial (see, CPL
§260.20; People v. Turaine, 78 N.Y.2d 871, 573 N.Y.S.2d 64;
People _v. Mehmedi, 69 N.Y.2d 759, 513 N.Y.S.2d 100). The
United States Supreme Court has recognized that a defendant's
absence from material stages of a criminal proceeding may impair
his ability to defend himself (Snyder v. Massachusetts, 291 U.S. 97,
105-06, 54 S.Ct. 330, 332).

The process utilized by the trial court was constitutionally
deficient in two important ways. First, a sworn juror was removed
without any inquiry into whether the particular circumstances would
render him an unfair or partial juror. It may very well have been
the case that once all involved heard what Juror Donovan had to say
there may have been agreement that he was fit to continue asa
juror, thereby obviating the need to discharge a juror in whose
selection appellant had participated. Second, the exclusion of
appellant and his attorney from the in chambers discussion between
the Judge and Juror Donovan deprived appellant of the right to make
his Own assessment of the juror's demeanor and motivations (see,
People _v. Sloan, 79 N.Y.2d 386, 583 N.Y.S.2d 176 [1992]).
Significantly, this opportunity would not have been a meaningless

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exercise in this case because appellant himself had serious concerns
-- which he expressed to the court -- about a juror who was sleeping
during the presentation of proof. Coincidentally, this juror
happened to be the first alternate, who was seated in Juror
Donovan's place [1063-70, 1075]. Had appellant been afforded his
right to be present during the court's meeting with Juror Donovan,
he would have been able to make an informed decision as to
whether he wanted Donovan to be removed in favor of someone
who might not give the requisite attention to the proof as it came in.

The Cattaraugus County Court ignored processes designed
to protect appellant's rights under Article I, Section 2 of the New
York State Constitution and deprived appellant of his right to be
present at a critical stage of the trial. Accordingly, appellant’s
conviction must be reversed and a new trial ordered.

POINT Ill

THE TRIAL COURT ERRED IN REFUSING
TO RECUSE ITSELF FROM APPELLANT'S
§330.30 MOTION HEARING

On September 19, 1997, prior to imposition of sentence but
post-verdict, juror Denise Luce hand delivered to the court a letter
which reflected her experience as a juror in appellant's case [1664].

On that same date, the court met with juror Luce outside the
presence of appellant and counsel. During the 45-minute,
off-the-record meeting between the court and juror Luce, Luce
related to the court her experiences as a juror, including the
harassment and extreme pressure she was forced to undergo from
other jurors. Ms. Luce explained to the court that she did not
believe that there was sufficient evidence to convict appellant but
only changed her vote due to the harassment and pressure from
fellow jurors [1719, 1820]. In her sworn affidavit, Ms. Luce states

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that she also "discussed several aspects of the case and jury
deliberations” with Judge ‘iimelein [1661]. She further stated that
during jury deliberations, two jurors from the Olean area brought
into the jury room extra record information which was crucial in
determining material issues at appellant's trial. Specifically, the
Olean jurors described the lighting in the area of the crime scene
and also stated that they could more accurately describe the size and
layout of the restaurant than the photographs which were offered as
evidence [1659-60].

Pursuant to CPL §§ 330.30 and 330.40, appellant filed a
motion requesting, inter alia, that the trial court recuse itself from
appellant's case based upon the improper meeting between the court
and juror Luce. Given that Ms. Luce was obviously a critical
witness to the juror misconduct and that it is impossible for appellant
to completely reconstruct the meeting between the court and Luce,
since the court failed to have a stenographer present to record the
meeting, Judge Himelein became a necessary witness. As such, the
denial of appellant's request for recusal was erroneous for a number
of reasons. '

In the first instance, appellant attempted to call the trial
court as a witness with respect to the various statements made by
juror Luce during their 45-minute meeting [1736-43]. In People v.
Rodriguez, 14 A.D.2d 917, 221 N.Y.S.2d 532, 533-534 (2d Dept.
19961), the Second Department recognized that:

There is no dispute as to the well-established rule
that where a judge is a material witness, he should

disqualify himself (People v. Amooro, 8 A.D.2d

683, 184 N.Y.S.2d 383; People, or Complaint of
Watkins v. Lennan, 706 App.Div. 266, 268, 200
N.Y.S. 510). The claim, however, that the judge is
a material witness must be made in good faith and

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must be based on fact (United States v. Halley,
2 Cir., 240 F.2d 418).

In the instant case, the trial court met with juror Luce two
days after the jury rendered its verdict and was obviously a witness
to her statements regarding jury misconduct. Additionally, the
failure of the trial court to have a stenographic record of the meeting
may have increased appellant's need to call the court as a witness to
testify to juror Luce's statements for purposes of either establishing
or impeaching her credibility concerning the various topics she
discussed. As such, the claim that the trial court was a material
witness was made in good faith and based on factual circumstances.

Secondly, due to the improper meeting between the court
and juror Luce, the court had the ability to dispute Luce's testimony
at appellant's §330 hearing based upon her off-the-record statements
at the September 19, 1997 meeting with the court. Any perceived
conflicts in her testimony could cast doubt upon her credibility
resulting in the court, whether consciously or subconsciously,
impeaching Luce's testimony at the hearing or relying upon what
she said before rather than in open court.

Additionally, based upon the court's off-the-record meeting,
Judge Himelein may have already formulated a determination of
Luce’s veracity on the merits of her claims of juror misconduct.
Specifically, prior to Luce's testimony at appellant's §330 hearing,
the trial court had observed her demeanor and presumably
developed an opinion about her honesty and credibility. Moreover,
the trial court was required to pass upon not only Luce’s credibility
but also the accuracy of her recollection. Against this backdrop,
recusal was necessary. The trial court had significant exposure to
the substance of juror Luce's anticipated testimony by virtue of a
45-minute ex parte conversation: with her during which juror Luce
divulged extensive information material to the basis of appellant's
§330 motion. Realistically, it must be acknowledged that during the

A-69

process of weighing juror Luce's testimony about events during jury
deliberations, the court naturally assessed her hearing testimony
against its own personal recollection of what juror Luce said during
the extensive -- and off-the-record -- discussions of the same issues
in chambers. Severe prejudice was caused to appellant given that
the court naturally could not help but be influenced in its valuation
of juror Luce's testimony by its own memories of a detailed private -
conversation with her about the very same subject matters, all in the
absence of retained counsel. The trial court's assessment of juror
Luce’s testimony was likely swayed by one or more of the following
potential factors:

(a) The addition of information concerning jury
deliberations not previously disclosed by
juror Luce during the ex parte meeting with
the court;

(b) The omission from her hearing testimony of
relevant information previously disclosed
by juror Luce to the court during the
unrecorded in camera meeting;

(c) Any court-perceived deviation from her
previous description of events in the
deliberation room;

(d) Any misapprehension by the court as to
what juror Luce said during the lengthy
meeting with the court; and/or

(e) Any court-perceived difference between
juror Luce’s demeanor during hearing
testimony about various events and her
demeanor during the court's personal
discussions with her about these very issues

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(i.e., a noticeable change in gravity or
ardency concerning particular issues).

Consequently, the trial court became an unsworn witness
whose undisclosed recollection potentially or in fact had a
substantial impact on the weight which was accorded to juror Luce's
testimony, wholly unbeknownst to appellant. Moreover, the trial
court based its denial of appellant's §330 motion almost solely on
the credibility, or lack thereof, of Luce and four other witnesses
[2049]. Appellant was left without recourse to use
cross-examination or any other tool which may have mitigated or
eliminated any prejudice stemming from the influence of any
differences between juror Luce's hearing testimony and her prior
ex parte statements to the court. Appellant is still unaware what
extra-judicial information the trial court relied upon in consideration
of juror Luce's testimony. Further, appellant was denied any
opportunity to effectively address the prejudicial impact of the
interplay of seemingly improper influences during the court's
deliberative process.

Additionally, the failure of the trial court to recuse itself.
based upon the court's correspondence with Ms. Rae Coletti,
appellant's aunt, was erroneous.

Appellant requested also that the court recuse itself for the
purposes of eluding any appearance of impropriety, bias or
prejudice resulting from the trial court's extra judicial statements
made to Ms. Rae Coletti. Two letters were drafted by the court to
appellant's aunt, Ms. Rae Coletti, wherein the court made specific
comments with regard to: the court's own opinion of the facts;
choice of counsel] issues; the upcoming sentencing; and the plea
which appellant chose not to take [1724-28].

More specifically, by letter dated October 21, 1997 to
Ms. Coletti, the court wrote:

62

A-71

There was no “awareness” on my part that John
Reynolds was innocent according to the evidence.
... Two people testified that Mr. Reynolds led the
charge outside, two people testified that
Mr. Reynolds was in the pile of people that were
hitting and kicking Kevin King, and Mr. Reynolds
ran away when learning that the police were called.
Section 20 applies virtually every time more than
one person participates in an event. The defense
did not seriously challenge that.

[1724-25]. Significantly, the court has mistakenly set forth the law
of accessorial liability for the conduct of another. Section 20.00 of
the Penal Law, entitled "Criminal liability for the conduct of
another,” states:

When one person engages in conduct which
constitutes an offense, another person is criminally
liable for such conduct when, acting with the mental
culpability required for the commission thereof, he
solicits, requests, commands, importunes, or
intentionally aids such person to engage in such
conduct.

N.Y. Penal Law §20.00 (McKinney 1987). Notably absent from the
court's letter is the fact that an accused must share the mental
culpability of the actor when engaging in such conduct. Instead, the
court made the blanket statement that "Section 20 applies virtually
every time more than one person participates in an event” [1724].

Further, by

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1521%3A2. Public record. Not legal advice.