                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 14, 2016                     108003
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

GANESH R. RAMSARAN,
                    Appellant.
________________________________


Calendar Date:   June 1, 2016

Before:   Peters, P.J., Rose, Mulvey and Aarons, JJ.

                             __________


     Cheryl Coleman, Albany, for appellant.

      Joseph A. McBride, District Attorney, Norwich (Michael J.
Genute of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from a judgment of the County Court of Chenango
County (Revoir Jr., J.), rendered December 1, 2014, upon a
verdict convicting defendant of the crime of murder in the second
degree.

      On December 11, 2012, Jennifer Ramsaran (hereinafter the
victim) went missing after last being seen at her home in the
Village of New Berlin, Chenango County. After the victim's body
was found in February 2013, it was determined that she had been
killed by unnatural causes some months prior, although the exact
cause of death could not be determined. Defendant, the victim's
husband, was thereafter charged by indictment for her death with
one count of murder in the second degree. After a jury trial,
defendant was convicted as charged and sentenced to 25 years to
                               -2-               108003

life in prison.   Defendant now appeals.

      Initially, we find no error in County Court denying
defendant's motions to dismiss the indictment. The record does
not reflect, as urged by defendant, that the People injected
hearsay evidence into the grand jury proceeding or engaged in
intentional misconduct so as to prejudice the ultimate decision
reached by the grand jury and, therefore, the extreme remedy of
dismissing the indictment is not warranted (see People v Boddie,
126 AD3d 1129, 1130 [2015], lv denied 26 NY3d 1085 [2015]; People
v Miller, 110 AD3d 1150, 1150-1151 [2013]).

      Next, we are unpersuaded by defendant's contention that,
given the wholly circumstantial nature of the case, the verdict
was not supported by legally sufficient evidence and is against
the weight of the evidence. Even when a case is based upon
circumstantial evidence, the legal sufficiency of the evidence is
established when, "viewing the evidence in the light most
favorable to the prosecution, there is a valid line of reasoning
and permissible inferences from which a rational jury could have
found the elements of the crime proved beyond a reasonable doubt"
(People v Reed, 22 NY3d 530, 534 [2014] [internal quotation marks
and citations omitted]). To convict defendant of murder in the
second degree, the People were required "to prove beyond a
reasonable doubt that defendant caused the victim's death after
having acted with the intent to do so" (People v Wlasiuk, 136
AD3d 1101, 1102 [2016], lv denied 27 NY3d 1009 [2016]; see Penal
Law § 125.25 [1]).

      At the trial, the People elicited testimony that defendant
made a missing person report to the police around 7:54 p.m. on
December 11, 2012. Defendant reported that the victim had left
to go on a shopping trip to the City of Syracuse, Onondaga County
at approximately 10:00 a.m. that day and was supposed to return
home at 5:00 p.m. According to the police officer who responded
to defendant's report of a missing person, defendant was "adamant
something terrible had happened" to the victim. The police
officer testified that, when he asked defendant about the state
of his marriage, defendant indicated that his marriage was
perfect. Thomas Renz, the victim's father, testified that
defendant called him on December 11, 2012 around 5:30 p.m. upset,
                              -3-                108003

telling him that the victim had not returned from a shopping trip
and that he was going to call the police. Testimony also
established that defendant called a friend around 8:00 p.m. but
did not mention that the victim was missing until approximately
five minutes into the phone call. The friend offered to come
help look for the victim, but defendant declined the offer,
saying that he "was trying to maintain a sense of normal[cy] for
the kids."

      When interviewed by the police regarding the events of
December 11, 2012, defendant indicated that, after returning home
from taking the children to school, he started working from home
on his computers. However, a computer forensic investigator who
analyzed both of defendant's work computers testified that one of
the computers remained idle on that day. The other computer was
used until approximately 8:08 a.m. and, at approximately 8:15
a.m., a program was installed on that computer in which, after
approximately one minute, the installation process became
automatic and lasted until 8:24 a.m. No further computer
activity was noted until 6:31 p.m.

      With regard to the victim, the People presented evidence
that, on the morning of her disappearance, she was playing an
online game that she abruptly left around 8:15 a.m. without
explanation. The victim did not respond to a subsequent message
sent around 8:30 a.m. from Robert Houston, with whom the victim
regularly played the online game, as to why she left the game.
Houston testified that the victim had never before just left a
game without explanation. According to Houston, the victim
planned to go shopping later in the week, but intended to use her
friend Eileen Sayles' car because her van was making strange
noises. The People also presented evidence that, on the morning
of the victim's disappearance, her cell phone was still connected
to defendant's home Wi-Fi network at 10:57 a.m.

      Defendant reported that he went for a run to the YMCA after
the victim left on her shopping trip, but testimony at the trial
revealed that his statements to the police were inconsistent as
to the running route he took that day. Video evidence depicted
defendant walking through the YMCA parking lot and entering the
building around 12:41 p.m., but defendant does not appear running
                              -4-                108003

on any other surveillance footage from multiple businesses
located along the route that he claims to have taken. Testimony
established that defendant informed various people at the YMCA
that the victim had gone shopping in Syracuse and that he needed
to call a friend for a ride home. Defendant then called Sayles,
with whom he had been having an affair and who he considered to
be his "soulmate," to pick him up. Sayles testified that, during
her relationship with defendant, he wanted to have sex with her
"[a]ll the time," and that she found it unusual that he did not
invite her into the house after she drove him home from the YMCA.

      Testimony at trial established that defendant had requested
a divorce from the victim on various occasions and that he had
recently discussed with a friend the negative financial
implications of a divorce. The evidence further established that
the victim had an upcoming appointment with a divorce attorney.
Sayles testified that defendant pressured her to divorce her
husband and once wrote that he "would have done everything and
anything for [them] to be together." The People also introduced
testimony and other evidence regarding defendant's relationship
with the victim, his controlling behavior toward her, his intense
dislike for her playing online games and his dissatisfaction with
her appearance, particularly compared to Sayles. Extensive
testimony and evidence was also admitted regarding defendant's
obsession with sex and his requests for the victim and Sayles to
send him sexually explicit photographs of themselves.

      Testimony regarding defendant's unusual behavior following
the victim's disappearance was also presented. Five days after
the victim disappeared, defendant posted on social media that the
victim's funeral would be the first funeral he would ever attend.
He also made inappropriate sexual comments to a female
acquaintance within days after the victim's disappearance, as
well as disparaging remarks about the victim as a mother and
wife. Evidence also established that defendant asked Sayles to
move in with him, changed her mailing address to his without her
permission, opened an email account for her using the name
"Eileen Ramsaran" and made over 2,000 phone calls to Sayles from
jail following his arrest.

     Evidence also established that, the day after the victim
                              -5-                108003

disappeared, defendant located the general location of the
victim's cell phone through the "Find My iPhone" application.
The police searched the area but they were unable to locate the
victim's cell phone. Later that afternoon, defendant searched
for the cell phone and reported to the police that a ping sound
led him to the location of the cell phone, which was found behind
a rock in the grass of a creek bed. Testimony established that,
when the police arrived to retrieve the cell phone, no ping sound
could be heard. Five days after the victim disappeared,
defendant asked Renz to take him for a ride and, as defendant
directed Renz the route to drive, Renz noticed the victim's van
in plain sight in the parking lot of an apartment complex. After
dropping defendant off back home, Renz reported the discovery of
the van to police.

      Forensic testimony established that large blood stains in
the back of the victim's van were a conclusive DNA match with the
victim. Analysis on a blood stain on the sweatshirt that
defendant wore on the morning that the victim disappeared
concluded that defendant was the major contributor of the blood
and that the victim could not be excluded as the minor
contributor to that blood stain. Furthermore, a forensic expert
testified that it was 1.661 quadrillion times more likely that
the blood sample from the sweatshirt contained a combination of
defendant's and the victim's blood than if two randomly selected
individuals were the donors. With regard to the victim's body,
found two months after the victim went missing, a forensic
pathologist testified that, given the extensive decomposition and
animal activity, particularly about the victim's head, face and
left side of her body, an exact cause of death could not be
determined. However, he testified that, in addition to bruises
and lacerations on the victim's body, there was internal bleeding
underneath her scalp on the back of her head as if she was struck
by something and there were also internal hemorrhages across her
back. Based upon the results of his autopsy and the fact that
the victim's naked body was found at the bottom of an embankment,
the forensic pathologist opined that the manner of death was
homicide.

      Viewing the evidence in a light most favorable to the
People, we find that the evidence is legally sufficient to
                              -6-                108003

support the conviction. Furthermore, as a different verdict
would not have been unreasonable, we must "weigh the relative
probative force of conflicting testimony and the relative
strength of conflicting inferences that may be drawn from the
testimony" to determine if the verdict is supported by the weight
of the evidence (People v Bleakley, 69 NY2d 490, 495 [1987]
[internal quotation marks and citations omitted]; see People v
Wlasiuk, 136 AD3d at 1102; People v Cushner, 46 AD3d 1121, 1123
[2007], lv denied 10 NY3d 809 [2008]). Viewing the evidence in a
neutral light and deferring to the jury's resolution of
credibility, a rational trier of fact could have found that the
verdict is not against the weight of the evidence (see People v
Wlasiuk, 136 AD3d at 1103; People v Oliver 135 AD3d 1188, 1191
[2016], lv denied 27 NY3d 1003 [2016]).

      We do, however, find merit to defendant's contention that
certain errors rendered defense counsel ineffective, thereby
depriving defendant of a fair trial. "In order to sustain a
claim of ineffective assistance of counsel, New York courts
[must] examine the trial as a whole to determine whether
defendant was afforded meaningful representation" (People v King,
27 NY3d 147, 158 [2016] [internal quotation marks and citations
omitted]). "The effectiveness of the assistance of counsel is
analyzed in terms of whether 'the evidence, the law, and the
circumstances of a particular case, viewed in totality and as of
the time of the representation, reveal that the attorney provided
meaningful representation'" (People v Cassala, 130 AD3d 1252,
1253 [2015], lv denied 27 NY3d 994 [2016], quoting People v
Baldi, 54 NY2d 137, 147 [1981]; see People v Wright, 25 NY3d 769,
779 [2015]). A defendant's claim that counsel's performance was
deficient must amount to more than "a simple disagreement with
[counsel's] strategies, tactics or the scope of possible cross-
examination" (People v Flores, 84 NY2d 184, 187 [1994]; see
People v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934
[2012]; People v Arnold, 85 AD3d 1330, 1332-1333 [2011]).
However, "[e]ven where counsel's errors individually may not
constitute ineffective assistance, the cumulative effect of
defense counsel's actions can deprive [a] defendant of meaningful
representation . . . [when] the seriousness of the errors [is
considered] in the[] totality" (People v Wright, 25 NY3d at 779
[internal quotation marks, brackets and citations omitted]; see
                              -7-                108003

People v Arnold, 85 AD3d at 1334).

      We agree with defendant that defense counsel's failure to
object to the prosecutor's inappropriate characterization of the
DNA testimony and evidence during summation requires reversal.
Although "[c]ounsel is afforded wide latitude during summations,
. . . when a prosecutor's remarks are so egregious such that they
deprive a defendant of a fair trial, reversal is warranted"
(People v Rupnarine,     AD3d    ,     [2016], 2016 NY Slip Op
04257 [2016], *1). Numerous times during the summation the
prosecutor mischaracterized the testimony of Daniel Myers, the
forensic expert, as well as the DNA evidence found on defendant's
sweatshirt. To that end, Myers testified that, with regard to
the blood stain found on the sweatshirt that defendant wore on
the day that the victim disappeared, the stain consisted of a
mixture of profiles, the DNA of which was consistent with
defendant being the major contributor admixed with DNA from at
least one additional donor. From that, the victim could not be
excluded as a possible contributor of the STR/DNA mixture profile
and that profile is 1.661 quadrillion times more likely to be
observed if donors are defendant and the victim than if two
random unrelated people were selected. Myers testified, however,
that there were not enough alleles or DNA data to say
conclusively that the victim's DNA was present.

      Nevertheless, during summation, the prosecutor repeatedly
mischaracterized Myers' testimony and the DNA results by stating
multiple times that the victim's DNA was on the sweatshirt.
Specifically, the prosecutor initially stated that "on that
sweatshirt is [defendant's] wife's DNA." Later, when discussing
Myers' DNA report, the prosecutor incorrectly stated that the
report "shows that [the victim's] DNA was on that area where the
bloody spot is." Even if this last statement could be viewed as
asking the jury to make an inference from the evidence at trial,
the prosecutor again misstated the testimony by saying, "We have
the forensic people who say[] . . . [the victim's] DNA is on that
sweatshirt, to some degree." Defense counsel made no objections
to such characterization of the testimony or DNA analysis. We
conclude that, given the purely circumstantial nature of this
case, and "[i]n light of the powerful influence of DNA evidence
on juries, the opportunity for juror confusion regarding . . .
                              -8-                108003

the qualified nature of the test results, defense counsel's
failure to object [to the prosecutor's comments during summation,
alone,] rendered him ineffective" (People v Wright, 25 NY3d at
771; compare People v Fisher, 89 AD3d 1135, 1139 [2011], lv
denied 18 NY3d 883 [2012]).

      While we find that defense counsel's failure to object to
the prosecutor's inaccurate and misleading description of the DNA
testimony and evidence is sufficient, by itself, to have deprived
defendant of a fair trial, we also note that other trial errors
by defense counsel, when taken as a whole, lend additional
support to defendant's contention that he was deprived of the
effective assistance of counsel. The record reflects that
defense counsel failed to object to irrelevant and prejudicial
testimony elicited from multiple witnesses, including testimony
as to defendant's "general demeanor," his relationship with the
victim as far back as 1998, his attitude regarding marriage and
extensive background information about the victim – including her
education, behavior as a mother and relationship with her
parents. At one point during the trial, defense counsel stated
that he did not object to any of this testimony "out of respect"
and because he "[did not] believe it's anything that hurts
[defendant]." However, if defense counsel had objected to the
prejudicial testimony elicited by the prosecutor as to the
victim's sympathetic demeanor or the irrelevant testimony
concerning defendant's behavior as far back as 1998, he would
have succeeded (see generally People v LaValle, 3 NY3d 88, 113-
114 [2004]; People v Humphrey, 15 AD3d 683, 685 [2005], lvs
denied 5 NY3d 763 [2005]).

      Further, defense counsel presented a confusing and inept
summation. Defense counsel often confused relevant legal
principles, such as when he stated that "[t]he prosecutor must
fulfill his promises in his opening. That's the law," or where
he told the jury that it had to be sure beyond an absolute doubt
as to defendant's guilt – after which County Court interposed to
instruct the jury as to the correct burden of proof. Defense
counsel further told the jury, "It's possible [defendant] could
have done it," that it was a question he asked himself "a million
times," but that a possibility of guilt was not enough and the
jury must be "absolutely convinced of everything that [it] heard
                              -9-                  108003

here that [defendant was] guilty." In our view, defense
counsel's summation was harmful to defendant's case because he
confused the jury with his interpretation of the relevant burden
of proof and standards of law (see People v Dean, 50 AD3d 1052,
1053 [2008]; compare People v Tommaselli, 102 AD2d 943, 944
[1984]). Standing alone these errors may not have deprived
defendant of his right to meaningful representation, but, when
viewed along with defense counsel's failure to object to the
People's misleading and improper characterization of the DNA
testimony and defense counsel's confusing statement regarding the
burden of proof during closing arguments, we find that "the
cumulative effect" of these errors and "the seriousness of the
errors in their totality" further support our conclusion that
defendant received ineffective assistance of counsel and he was
deprived of a fair trial (People v Wright, 25 NY3d at 779
[internal quotation marks and citations omitted]; see People v
Oathout, 21 NY3d 127, 132 [2013]; People v Bush, 107 AD3d 1302,
1303 [2013]; People v Arnold, 85 AD3d at 1334-1335).

      Given our determination, we need not address defendant's
remaining contentions.

     Peters, P.J., Rose and Aarons, JJ., concur.



      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Chenango County for a new
trial.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
