eight good morning and may please the court my name is randall unger and i represent the appellant mr miller procedurally i don't believe that the defendant ineffective assistance of counsel claim was ever decided on the merits by the state courts in the direct appeal that he took from his conviction the appellate division made no reference whatsoever to the ineffectiveness claim in fact neither did the prosecutor when they submitted their answering brief different aspects of ineffectiveness that were raised but it treats in several paragraphs the various arguments that were made addresses and finds that counsel provided a competent performance including appropriate aspect pointing out that trial counsel and chosen not to call think the fingerprint expert that he had consulted with this a matter of trial strategy having informed the court that he had hired such an expert and declined to present it so i don't see what's missing from the four hundred and forty decision so maybe you could enlighten me i think the ineffectiveness of trial counsel claims that were addressed by the appellate division in the collateral challenge referred to other omissions by trial counsel not specifically to his failure to object to the criminalist testimony regarding the two other examiners conclusions it refers to including appropriate actions and it's a complete approach i think a comprehensive attempts to address the objections and concerns that have been raised about ineffective assistance it doesn't call that out specifically the failure to object to that technical experts through that half as judge kogan point out it was a half a page in twenty seven pages of the simon and his testimony so i don't really see how you can urge just that these arguments were overlooked i think disagree with the court obviously i think that it was overlooked and the fact that the appellate division so specifically address the other aspects of the in effect of this claim without even mentioning the fact that counsel had not objected to what really turned out to be a denial of the defendant's right of confrontation i think is telling john let me ask you about the merits on the issue of whether or not there had been a strategic reason not to object when was ineffective not to object judge hogan said there were no reason not to object in this situation but when you look at the question the answer st of all the question was what did you do after you found the match so there was no notice to the council that this was going to come out about the two examiners that in the question was one question about what did you do next and then it comes out so  decision to make at that point i guess it's come out maybe you can object after it comes out but why would it be a strategic decision it was a brief reference that witness's testimony and he counsel crossed the witness on inconsistency these are problems that may have existed in the testimony why is that a strategic decision i'm not going to object to highlight this to the jury and also the prosecutor could turn around and call those two experts which could be worse y confrontation clause case was so muddled that someone would know if one expert refers to some work that other experts did whether or not that would be a problem or not so but i think to me it's clear that the testimony of the testifying criminalist as to the conclusions mirroring her conclusions that this was the defendant's fingerprints clearly that's all of it for the truth whenever the case was tried whether it was right after crawford would ten years later you're objecting to that because you're letting before the jury the conclusions of two uncooled witnesses ok so i'm going to go back to my original question why when you make maybe see yourself i don't want to object because it's going to highlight potentially that brief reference to the jury and prosecutor may turn around and call the two other witnesses which will make my current situation much worse the prosecutor could always do that there's no way to prevent that so i don't see the harm in asking the judge please strike that testimony and issue a limiting instruction or curative to the jury don't regard that and jurors are presumed to follow those types of things i like that would not highlight as a very brief reference that was never referred to again in the closings or any other part of the trial and it may have been a brief reference but the jury heard it so regardless of whether it was later exploited by the prosecutor during summation or it only consisted of a quarter of a page of testimony the jury hears it and they take that into account without any other evidence this is this is a circumstantial let me let me ask you that that's the next question i had about prejudice if at that reference had been made what evidence is there that the jury would not have credited the one fingerprint expert who testified and as you probably know hundreds and hundreds of cases defendants are convicted based upon the testimony of one fingerprint expert i think it's very rare that a prosecutor would ever call more than one fingerprint expert so what was there in that in the testimony of that witness that would have created any doubt about the accuracy of that comparison without the testimony trial counsel could make the argument to the jury look the people have a single piece of evidence presented by one lone witness no other evidence connecting the defendant isn't it true that defense get convicted routinely based upon a fingerprint expert but one expert who compares the fingerprints that the government doesn't call two or three verifiers on a fingerprint but that's up to the prosecution how many witnesses they want to make a point with but with only the witness who testified for the prosecution with only her testimony i think the defense has a much stronger argument before the jury look this is a one witness case and it's circumstantial at that and that's all we have in this case with the two other examiner's conclusions thrown into the trial that gave the jury something more than they should have had in this case the government good morning your honor her testimony as a description of essentially what the lab protocol is without referring to any conclusions on the part of other examiners and so then later on approximately nine pages later in testimony when she's asked what did you do after you had a match she does refer to other examiners signing confirmation slips as what she refers to but there's no explanation of what conversely confirmation slips are there is no document entered into evidence with respect to other examiners so you have  the witness herself who did perform the analysis and the match testifying about the match and the work that she did and the protocol that she followed and and only it's really only very implicit  reference to any conclusion on the part of the other examiners would be if it was just that question and answer but when she doesn't describe the protocol she certainly explains that these confirmations involve a separate independent analysis by other experts if you combine her overall explanation the protocol with that reference i don't think that it would be a stretch to say that the jury understood that this was an independent examination by two other examiners right except it was it was still very her own testimony was really the focus and defense counsel still could argue and did argue that there was a lack of evidence and and so on other than her her testimony so it  wasn't as though there was was prejudice from from this fleeting unobjective to testimony concerning other examiners  that's i suppose the crux of the matter but just to return back to the decision by the district court the court in this case found that there was no prejudice from counsel in this case had retained his own defense fingerprint expert and knew that from his own expert that his own expert if called to testify would  this defense counsel clearly would not have wanted to call attention to other examiners or invited in any way the prosecutor to call these other witnesses in response to an objection on proffered grounds and again crawford was not clearly although the crawford decision was available to counsel and also  melendez diaz in those cases and melinda's diaz for example there was testimony by that there was no testimony by the actual analysts here you have and it was just lab reports that affidavit effectively affidavits that were put into evidence whereas in this case you had the actual the witness who performed the analysis testifying and no lab report from another analyst the defense counsel could reasonably regard this as well it wasn't clear it wasn't necessary it would it would have a significant downside so therefore respondants position is that council didn't air conduct was reasonable and not objecting and that would put your position about the whether that the with their any state court address this particular argument on the merits well the appellate the response position appellate division address this claim did not specifically expressly address this claim but it rejected the claim of ineffective assistance of counsel relating to the confrontation clause claim on direct appeal and i say that it was not preserved and so they were addressing it on the merit but claim of ineffective assistance of counsel does not require preservation that's why it's important to note when the division said that confrontation clause claim was an preserve it wasn't referring to the ineffective assistance of counsel portion of that just as it did  express lee address the the lack of preservation and its own decision to not a not review it in the interest of justice that argument by defendant was on the same page as defendants arguments  referring to in effect of assistance of counsel for failure to object to the confrontation so so it's clear that the appellate division wasn't over looking at it said state courts aren't required to address every insubstantial contention of of a defendant so under these circumstances it again i would i would say in addition to that even if you were not convinced that the appellate division address rejected it on the merits in in the direct appeal on the th in the four hundred and forty appeal the the appellate division said contrary to the defendant's contention the supreme court could determine from the party submissions that the defendant was not deprived of the effective assistance of counsel so under state law a claim that has been raised on direct counsel again said it was unpopular and did not address the merits right of this particular claim it said it was as easy as it was as it had been referenced in the direct appeal it's on preserved it didn't say we reject it on the merits right well that includes a variety of things including contentions that have already been raised on appeal because this is the kind of claim where you combine the grounds and the lower court for forty  this st claim for ineffectiveness for failure to investigate an object generally but then with the nd nd claim which was on this particular issue for you object to the reference to the other examiners violent confrontation clause and in the four the court in that instance is saying there's a procedural bar that would now the appellate division does not is not required to make that same take that same view and so that's why i'm saying it's really up to the appellate division and the appellate division's decision in this case was was it was very clearly a rejection of the in effect of all of the aspects of  procedural garments when essentially it affirms the lower court's decision on the four for you on procedural grounds and does not address the merits of that particular claim of well that's what i'm looking at the session right here and i just read to you from the decision yes that paragraph deals specifically with this exact quain and said it continues to be procedurally barred right well no because it's only talking about the in effect it's talking about the confrontation clause claim which is division did not say that the ineffectiveness claim was un preserved that's that's contrary to state law and they would not have said that and that's one part of how you can parse this out because they're talking about the confrontation clause claim and then the as the contention that is counsel was ineffective is treated with the other contentions that that that were not on record contentions that's under people versus maxwell which is  case that cited in our in our brief under state law so under these circumstances where the appellate division either on direct appeal or in the four hundred and forty motion or both has rejected the the defendant's claim of ineffective it really wasn't relevant to the testifying examiners conclusions what she did with the results of her test other examiners looking at them and doing their own i don't see what relevance that had and what it was altered in is essentially two additional conclusions by two on called witnesses who were i guess themselves experts and viewed as such presented before the jury as confirmation of  the testifying examiners conclusion now the point was made about trial counsel having retained his own expert to examine the latent fingerprints and realizing oh this is confirmation of the prosecution's case so that's interesting because trial counsel knew that there was a possibility of corroborating the expert called by the prosecution so he well knew that the other examiners who weren't cooled by the prosecution they were going to be damaging just as his own expert would damage the defendant's case so he would have known and should have objected to this testimony coming out for that reason now the other point was with melendez d is the prosecutor made the argument that well no expert witnesses at all were called in that trial and that was the problem well here it's true we did have one expert the prosecution were concerned about the two old witnesses they were never subject of course examination they were not found to be unavailable i submit to this court that was a clear crawford violation and a th amendment confrontation violation thank you thank you very much thank you for your arguments will take the matter