STATEMENT OF FACTS by 5B31i9o

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									SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: SECOND DEPARTMENT

-------------------------------------------------------X

THE PEOPLE OF THE STATE OF NEW YORK,

                          Respondent,

               vs.

GERSHON AIZIKOWICH

                     Defendant-Appellant,

--------------------------------------------------------X

                          STATEMENT

    Appellant, Gershon Aizikowich was sentenced to One

Year Probation, on his conviction for Attempted Assault in

the Third Degree, Menacing in the Third Degree and

Harassment in the Second Degree as well as the mandatory

surcharge of $160 by the Criminal Court of the City of New

York, Count of Kings, Judge Geraldine Pickett, presiding.




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                    QUESTIONS PRESENTED

I. DID THE COURT BELOW COMMITTED REVERSIBLE ERROR BY
ALLOWING THE POLICE OFFICER TO IMPROPERLY BOLSTER THE
TESTIMONY OF THE TWO CIVILIAN WITNESSES?


II. DID THE COURT BELOW COMMIT REVERSIBLE ERROR BY NOT
HOLDING A CHARGE CONFERENCE BEFORE SUMMATIONS?

III. WAS THE APPELLANT PROVIDED WITH EFFECITVE ASSISTANCE
OF COUNSEL?

IV. WAS THE EVIDENCE BELOW LEGALLY SUFFICENT TO PROVE
APPELANTS GUILT OF THE CHARGES BEYOND A REASONABLE DOUBT?




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                      STATEMENT OF FACTS

    The appellant Gershon Aizikowich was arrested on April

27, 2007 in Brooklyn and charged with the crime of Assault

in the Third Degree, Attempted Assault in the Third Degree,

Menacing in the Third Degree, Unlawful Imprisonment in the

Second Degree and Harassment in the Third Degree based on

the complaint of Irina Gelman.

    After the matter was converted to [an] information the

People dismissed certain counts of the information and

proceeded to trial on the counts of Attempted Assault in

the Third Degree, Menacing the Third Degree and Harassment

in the Second Degree and a bench trial was conducted.

    At trial the People first called Police Officer

Elizabeth Judd.   Officer Judd testified that she responded

to a call of an assault in progress at 157 Coleridge Street

in Brooklyn. (T. 4/24/08 pages 13-14)

    At that location the officer was flagged down by Raisa

Gelman who while crying hysterically stated that he killed

her. (T. 4/28/08 pages 15-16) At some point the officer

found out that the person that was killed was Raisa

Gelman’s daughter and that the person who did it was the

appellant. (T. 4/28/08 page 16) The witness then identified

a picture of the location[,] which was introduced into

evidence. (T. 4/28/08 page 18)


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    Officer Judd then went into one of the doors of the

location and saw the appellant. The officer drew her

firearm and told the appellant to put his hands up and the

appellant was detained. (T. 4/28/08 pages 20-21)

    Then the victim appeared and was bleeding from under

the eyebrow. The victim was frightened. (T. 4/28/08 pages

22-23) After the officer observed the injury to the victim

the appellant was then placed under arrest. (t. 4/28/08

pages 23-24)

    Officer Judd after an objection by appellant’s counsel

testified as to what was told to her by the victim.

Officer Judd stated that she was told that the victim went

to the laundry room which was in the basement and was

attacked from behind and was grabbed by the neck and

dragged through the hallway to his apartment and he was

throwing her into the wall and on a couch.      The appellant

then threw her on the couch and was on top of her choking

her. (T. 4/28/08) pages (24-25) [Not mentioned that all

traces of fighting were found inside my room and there was

no one single mark on wall in the hallway. No such

photograph. ]

    Photographs of the victim were taken at the precinct

latter on and were vouchered.       A cell phone, which belonged

to the victim Irina Gelman, was also vouchered because it


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was broken. (T. 4/28/08 pages 25-26)    [There was no proof

that it was picked up in my room.]

       On cross[-]examination Officer Judd admitted that when

she received the radio run she had no idea who the victim

was.    She also testified that she became aware that both

Raisa Gelman and the appellant had called 911.    [Not

mentioned that in fact I was first to call.](T. 4/28/08

page 28) Officer Judd further admitted that the appellant

had made a statement to some police officer but did not

know which officer the statement was made to. (T. 4/28/08

page 29) [attempted to make the statement, but was not

allowed] The officer further admitted that the appellant

had stated to her that he had called the police and did not

understand why he was being arrested that she had attacked

him.    However the officer did not believe him because she

did not see any visible injuries. (T. 4/28/08 page 30) The

officer stated that she was unaware that the appellant

suffered a broken thumb because he did not complaint to her

about the injury.    (T. 4/28/08 page 31) [There should be

mentioned that I had, VISIBLE on my MUG SHOTS, scratches on

my neck. So, she just ignored my injures and don’t tell the

truth on the trial.]




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       The People next called Irina Gelman as a witness. Ms.

Gelman testified that she knew the appellant as her

mother’s tenant at 157 Coleridge. (T. 4/28/08 Page 41)

       On April 28, 2007 the Ms. Gelman stated that she had

breakfast, and then went to the basement to do laundry and

spoke to her grandmother. (T. 4/28/08 page 42) Ms. Gelman

further stated that she was getting the dry clothes from

the dryer when someone grabbed her from behind and started

dragging her.    She started flailing and grabbed the

bathroom door and the wall but slipped. [What is it? Was

there any proof of it? ] When she passed the kitchenette

she grabbed a spray. [That spray wasn’t presented in the

trial and nobody can say what exactly it was and why it was

in the kitchen. In fact, Judd wasn’t collecting any

objective evidence, but only those, which would incriminate

me.]    The witness was still being dragged.   She started

dialing her cell phone to call 911 but the appellant

grabbed the phone out of her hand and started to choke her.

The people over appellant counsel’s objection then

introduced the cell phone into evidence.       (T. 4/28/08

pages 46-52) The witness stated that she tried to escape

but the appellant was choking her.    Then the witness was

shaken and he mashed her against the back of [WHAT?](T.

4/28/08 pages 54-55)


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    The witness identified photographs that showed the

apartment as well as a stereo and CD box.    The witness then

claimed that the photo showed her blood on the stereo.      (T.

4/28/08 page 60) She also recognized a photo of a pillow

and again stated her blood was on it. (T. 4/28/08 pages 60-

61) She also identified a photo which showed a light switch

and again she claimed her blood was on it.    (T. 4/28/08

pages 62-63) [Why not to mention that it is all fake,

because the judge did not allow medical records to be

presented. Not mine and not her.]

    Ms. [Irene?] Gelman stated that the first time she saw

appellant was when he grabbed her cell phone. (T. 4/28/08

page 68) The witness continued to describe what occurred to

her and stated that she was hit against the CD player on

the side in an area around her right temple near her

eyebrow. This was done while she was still being choked.

The appellant was using both hands to choke her and put his

left knee into her chest.    While doing this appellant was

dialing on his cell phone.    At some point Ms. Gelman

started screaming. (T. 4/28/08 pages 70-75)[How it is

possible? I can’t imagine.]

     At some point the witness’s mother came into the

apartment and scream at the appellant to let go.    The

mother then dialed a phone to call 911 [AFTER ME] and at


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that point the appellant loosened his grip and she ran up

to her mother’s apartment [and her mother couldn’t see her

and cried “he killed my daughter”?].   (T. 4/28/08 pages 77-

78) The police then came and the witness spoke [incited

them] to them (T. 4/28/08 page 78)

    The witness then treated at Coney Island Hospital and

received[,not proved] 5 stitches above her eyebrow.      The

witness then showed her laceration to the court.   The

witness then testified that her thyroid was not working

properly since the incident.   She also stated that she gets

constant headaches and that her sternum hurt her after the

incident. (T. 4/28/08 page 78-81) [No evidence whatsoever

was presented.]

    The People next called Raisa Gelman the mother of

Irina Gelman as a witness.   The witness stated that the

appellant was her tenant living in the basement apartment

at 157 Coleridge Street in Brooklyn. The appellant had

moved into the apartment in August 2006. (T. 5/8/08 pages

4-5) On the morning of April 28, 2007 the witness stated

that she was taking her granddaughter to the park but

returned as she had forgotten to take juice for the child.

When she got back she heard a scream from her daughter in

the basement. She then when down the steps towards the

basement and saw the appellant choke her daughter. She then


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screamed stop it and the appellant told her you don’t

understand and choked her.   The witness then called 911.

The 911 call was then introduced into evidence.   (T. 5/8/08

pages 6-12) The witness admitted that she told the 911

operator that he killed my daughter when that was not true.

(T. 5/8/08 page 13) [She said that she was looking from the

SECOND step on staircase, but later couldn’t recall if she

had interview with CCRB a year later. She obviously lied

because she could not describe where she left the baby,

which presumably was with her, when she went downstairs to

my room. ] The witness also testified her daughter suffered

a scar on her elbow and eyebrow.   (T. 5/8/08 page 14)

    On cross examination Raisa Gelman admitted that she

had placed an ad for a new tenant in a Russian newspaper.

(T. 5/8/08 page 15)

    The People then rested and the appellant’s motion to

dismiss at the end of the People’s case was denied. (T.

5/8/08 page 27)

    The appellant then took the stand in his own defense.

The appellant stated that he was 51 years of age and was

born in Russia and had obtained a degree in applied

mathematics and worked in Russia as a computer programmer.

In 1990 he went to Israel and worked there for a while and

then left to come to the United States in 1995 to join his


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sister and mother. He worked as a computer programmer in

New Jersey and on April 28, 2007 he was working as an

ambulette driver.    And currently was working as a school

bus driver.    (T. 5/8/08 pages 28-30)

    The appellant stated that he moved into the address at

157 Coleridge Street in 2006 and had been paying $650 a

month rent until January 2007 when it was raised by $50.

This was done because the appellant bought a small laundry

machine.    He told them after they raised his rent that he

didn’t want to pay any more [BIGGER RENT PAYMENTS]. (T.

5/8/08 page 31) [Why not to mention here that it was

illogical to attack daughter instead of landlady Raisa

Gelman. So, motive for the attack is not clear. They claim

that I was even friendly to Raisa (mother) and was trying

to explain something to her. ]

    The appellant denied ever punching, choking, grabbing,

striking or hitting Irina Gelman.    (T. 5/8/08 pages 31-32)

    At 10 AM in the morning the appellant heard jumping

above his head and as a result he turned up the music loud.

After the jumping stopped he turned off the music.     He then

heard people outside of his room with a huge dog, a

Rottweiler. The appellant waited for them to leave.    The

appellant then went to look as he heard the dog sniffing

his door.    When he opened the door someone sprayed


                               10
something into his face and he became very scared.    The

appellant stepped back into his room but the person

continued to spray something into his face. The appellant

tried to take the spray away while trying to stop the dog

[from entering his room and, may be, biting the appellant].

At some point he was able [to put] the woman with the spray

to the couch.   The appellant denied choking the person

saying it was impossible [Who could stand choking of much

heavier and much stronger man without any trace? PO Judd

did not mention any bruises on her neck. Anyway, she would

be dead if I did. The lie is self-evident here.].     When the

woman fell to the couch she dropped the spray.   He then

asked the woman what she was doing but did not get an

answer.   The appellant continued to hold the woman fearing

that she was going to reach for the spray. He called 911

but his message to the police was not clear.   The call to

911 was then played to the court.   At some point during the

phone call the woman broke the appellant thumb. The woman

then called 911 and he released her. [How she could call if

I 1/3 heavier her, much stronger and, presumably, was

choking her?]   The woman left the room without screaming.

After she left the appellant called 911 a second time and

that conversation was played to the Court. The police came

a little later and he was handcuffed [and not allowed to


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make statement. The true commanding high-ranking(it was not

Judd, of course) officer is hiding himself and other

officers cover him.].   (T. 5/8/08 pages 33-41) After the

appellant was released after his arraignment he sought

medical care at Coney Island Hospital. (T. 5/8/08 page 42)

The appellant had suffered a broken left thumb a big

scratch on the left side of his neck and a injury to his

leg. [Which we can find on his mug shots, but it wasn’t

proven since his medical records was not allowed to the

court.] (T. 5/8/08 pages 42-43)

    On cross[-]examination the appellant denied ever being

on top of Irina Gelman. (T. 5/8/08 page 50) The appellant

stated that Ms. Gelman had scratched him but he did not

choke her.   He did however hold her.   (T. 5/8/08 page 51)

When shown pictures of the stereo [player?] the appellant

stated that while it looked like his he was not sure it was

his. [WHAT IS IT?][The stereo is mine, but what it proves?

Blood (if any) can very well be mine, since I had injures

too.](T. 5/8/08 pages 52-53) The appellant denied ever

striking Irina Gelman’s head on the stereo.    The appellant

further denied scratching Ms. Gelman and felt that this

could since the attack on him was planned she could have

been scratched before [the incident or even after it, since

police did not make photo of her in my room in my or any


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witness presence.].   (T. 5/8/08 pages 53-54) The appellant

admitted that during his call to 911 you [one] could hear

Irina saying Momma help. [?] (T. 5/8/08 pages 58-59) The

appellant stated that the blood in the photo was his blood.

[? It wasn’t proven beyond any doubts that it was her.] (T.

5/8/08 pages 67-68)

    On redirect appellant’s counsel stated that he did not

have certified copies of the appellants medical records so

that any records of his injury was not admissible. In

addition the uncertified copies were never turned over to

the People so that they could not be used to refresh the

memory of the appellant.   (T. 5/8/08 pages 69-70) [WOW!

It’s a huge lie by my counsel. The whole year was not

enough to get them from the hospital? In November 2007

judge Best had received it from the hospital and had given

copies to the People and my counsel (through his

substitute). How they disappeared? Also I was trying to

submit another certified copy at my cross-examination and

my motion was objected by my counsel (!) and supported by

the judge. My legal rights were violated also when judge

Best refused my request to remove stranger – my counsel’s

substitute from my case. In addition, another case when my

legal rights were violated is when judge Pickett had given

me more strict order of protection without giving me a word


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to say. I never had given rights to my counsel to speak for

me. He was appointed by the court and if he did not believe

in my innocence, he had to tell me that and not represent

me in the court. This allowed the ‘victim’ to rob me.]

    The appellant then rested and a motion to dismiss

[what?] was then made and denied. (T. page 72)

    The court then listed to summations at no time prior

to the summations did the court indicate what charges it

would consider.   The Court then adjourned the case for its

verdict.

    On June 11, 2008 the court announced that it found the

appellant guilty of one count of Attempted Assault in the

Third Degree, one count of Menacing in the Third Degree and

one count of Harassment in the Second   Degree. (T. 6/11/08

page 5) The case was then adjourned for sentence.

    Trial counsel was then replaced by an assigned counsel

and the sentence of one year probation was imposed on

December 10, 2008.

     I.   THE COURT BELOW COMMITTED REVERSIBLE ERROR BY
ALLOWING THE POLICE OFFICER TO IMPROPERLY BOLSTER THE
TESTIMONY OF THE TWO CIVILIAN WITNESSES

    The trial court over the objection of the attorney for

the appellant allowed Police Officer Judd to testify as to

what was said to her by the civilian witnesses. The officer

was allowed to testify that the victim’s mother stated to


                              14
her that he killed her. (T. 4/24/08 p. 15-16). The court

further allowed the officer to state that the victim Irina

Gelman stated to her that “she told me that the defendant,

she went downstairs to the basement to change the laundry

and the defendant came up from behind her and grabbed her

around the neck and dragged her through the hallway to his

apartment and he was throwing her on the couch and got on

top of her and he was choking her. (T. 4/24/08 p. 25)

     This hearsay testimony should not have been admitted

into evidence as it was merely done to bolster the

testimony of the witnesses for the People.   The Appellant

Division Second Department in People v. Thomas 2009 NY Slip

Op 09688 held that there are only two places where a

statement concerning the events may be admitted into

evidence and the appellant would content that neither apply

in this matter.   The testimony by Officer Judd was an

attempt by the People to try and introduce what they

believed was a prior consistent statement by the victim and

her mother and this is clearly impermissible. See People v.

Rosario 2009 NY Slip Opinion 09507 1st Dept. 2009)

     Usually this type of evidence of a recent outcry is

only allowed in sex cases which this case is not.    In

addition the trial court allowed the officer to describe

the emotional state of the victim and her mother.    Again


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the appellant would argue that this testimony was done to

merely bolster the testimony of the victim and her mother

and was therefore improperly admitted into evidence and

should have been exclude.   See People v. Molina (2009 NY

Slip Op 29495 2nd Dept. 2009)

     Therefore the admission by the trial court of the

testimony of Officer Judd telling what had been told to her

by the complainant and her mother as well as telling the

emotional condition of the complainant and her mother was

reversible error.[Also, Judd did not introduced the broken

phone, records and photos. My counsel protested it and the

motion was denied when People let Irene to introduce it. It

was done to save Judd from lying under oath that she had

found the broken phone in my room.   ]

  II.   THE COURT BELOW COMMITTED REVERSIBLE ERROR BY NOT
        HOLDING A CHARGE CONFERENCE BEFORE SUMMATIONS

     The court below did not hold a charge conference.     At

the end of the testimony the counsel for appellant asked

the court for a justification charge and the Court answered

that it will take it into consideration.

     Under Criminal Procedure Law Section 320.20 a non jury

trial is to be conducted as a jury trial wherever

appropriate. Therefore a charge conference should have been

held by the Court prior to summations so that the attorneys



                                16
would know what issues and charges the court was considered

and to address their summations to those charges and

issues.   The court merely saying it would take

justification into account without indicating the specific

charge it would review is not sufficient. The appellant

therefore feels that the holdings in the dissent in People

v. Calderon (2006 NY Slip Op 51209 (U) App. Term 1 2006) in

which the trial judge did not hold a charge conference

should be applied to this case and therefore the judgment

of the trial court should be reversed.

  III. THE APPELLANT WAS NOT PROVIDED WITH EFFECITVE
       ASSISTANCE OF COUNSEL


    The appellant was irreparably harmed by the action of

his trial counsel and therefore his conviction should be

reversed. The appellant testified that his thumb[?]. Yet

counsel did not obtain certified records which could have

been admitted into evidence on behalf of the appellant.

(T. 5/8/08 pages 69-70) In addition counsel for the

appellant failed to turn over any records that he had

obtained to the prosecution and therefore the court would

not allow the appellant to use the records to refresh his

testimony during his cross examination.   Further there was

testimony that there was blood that was found in the

appellant’s apartment which both the victim and the


                              17
appellant claimed were their own blood.   Yet counsel did

not attempt to have any blood samples tested nor did he

challenge the prosecution on whether or not they had the

blood tested.   In addition the appellant’s counsel

introduced a 911 call made by the appellant in which you

could hear the victim calling Mama help clearly evidence

that was favorable to the People and not his client. (T.

5/8/08 pages 58-59) The appellant’s counsel also failed to

properly investigate the issue of whether or not his client

had been evicted by a marshal as claimed by the People.

[Good. But I also sent him photos of my home belongings

thrown on streets and he refused to help. Why not to

mention the judge’s decision to give me more strict order

of protection without discussion. The judge effectively

evicted me from my apartment.] (T. 5/7/08 pages 64-65)

    In order to have a conviction reversed for ineffective

assistance of counsel it is necessary under Strickland v.

Washington 466 US 668 (1984) to show that counsel’s conduct

so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having

produced a just result.   The Court of Appeals in People v.

Brown 45 N.Y. 2d 852, 410 N.Y.S. 2d 287 (1978) stated that

a defendant is entitled to a reversal where a defendant’s

interests were not protected by his counsel.   Further


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United States v. Cronic 466 US 658 states that if counsel

fails to subject the prosecution to meaningful adversarial

testing, he is ineffective and prejudice is presumed.

     It is the appellant’s belief that he was not provided

with meaningful representation by trial counsel and

therefore his conviction should be reversed.

  IV.   THE EVIDENCE BELOW FAILED TO PROVE APPELLANT’S GUILT
        OF THE CHARGES BEYOND A REASONABLE DOUBT


     This court has the power to review the evidence at

trial ensure that it was legally sufficient to convict the

appellant.   See People v. Mann 63 A.D. 3d 1372, 880 N.Y.S.

2d 792 (3rd Dept. 2009) Since there were conflicting

testimony given by both the People and the appellant this

court can weigh and consider the evidence to determine

whether the court below was justified in finding the

appellant guilty beyond a reasonable doubt.    (See People v.

Danielson 9 NY 3d at 348)

     The appellant would contend that the there was

insufficient evidence to convict him of all courts. Clearly

there was evidence of a motive to lie by the victim and her

mother in that they were seeking to evict the appellant

from his apartment. [And I don’t have any motives to attack

and put myself into troubles. What’s the point to attack

daughter instead of landlady? It should be underlined


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here.] Further the evidence shows that the victim’s mother

clearly lied that the appellant had killed her daughter as

was clear that she was alive. [She couldn’t explain where

she left the baby when she walked downstairs.] In addition

the appellant denied attacking the victim and stated that

he was the real victim and was acting in self-defense.

    [All pictures taken by police were made inside my room

and not even one taken in hall where I allegedly dragged

the ‘victim’ to my room. Also, Irena went out of my room

with her phone in her hands, so I don’t know how it made

its way to the evidence. Was it forged by ‘People’ or by

Police? ] Therefore, a careful review of the trial

transcript will show that there was insufficient evidence

to convict the appellant of each of the counts that he was

convicted of namely Attempted Assault in the Third Degree,

Menacing in the Third Degree and Harassment in the Second

Degree.

                         CONCLUSION

    For the reasons set forth above, petitioner

respectfully requests that the judgment of the Court below

be reversed.

                                      Respectfully submitted,



                                      STUART BIRBACH


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     Counsel for Appellant




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