Manhattan DA Alvin Bragg

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Our first guest today is Manhattan District Attorney Alvin Bragg. He's been in the news for various reasons since taking office in January. We'll talk about several of them. Today, it's for the exoneration of a 48-year-old man you might call the sixth member of the Central Park Five. Like Korey Wise, Kevin Richardson, Raymond Santana, Antron McCray, and Yusef Salaam, Steven Lopez was charged in the 1989 rape and beating of a white female jogger in Central Park.

The other five were tried and convicted, served years in prison, and were later exonerated by Manhattan DA, Robert Morgenthau, who had charged them in the first place. They also received a total of $41 million in settlements from the City of New York. Steven Lopez was also charged with rape in that case, but never went to trial because he reached a plea bargain, guilty to robbing a different jogger, a male, and the rape charge was dropped. Lopez never appealed his conviction, and only last year asked that it be revisited.

Now, the DA's office has vacated that conviction too after newly reviewing the evidence. The exonerated five are now the exonerated six. Of course, DA Bragg has also been in the news for charging then dropping the charges against Bodega worker, Jose Alba, who fatally stabbed a man caught on video attacking him. Also for not pursuing a criminal case that had potentially been in the works against Donald Trump.

Bragg has been in the news as the symbol for the political right, at very least, of a progressive prosecutor movement that has gone too far in a time of high crime rates. Republican gubernatorial candidate Lee Zeldin even says that if elected, he would fire Bragg, despite Bragg being elected by the people of Manhattan. DA Bragg, thank you for joining us. Welcome back to WNYC.

Alvin Bragg: Thank you so much. Thank you for having me again.

Brian Lehrer: In the case of the Central Park Five, someone else confessed to the rape and his DNA confirmed it. How did you figure out after all these years that Steven Lopez didn't even rob the male jogger, who he pleaded guilty to robbing?

Alvin Bragg: We did as we do in all of our investigations. We looked at the evidence. We looked, and as I said in court yesterday, really at a couple of key pieces. One, there had been some hair sample comparisons tying allegedly Mr. Lopez to the charge conduct. Those have been deemed unreliable, and so there's no physical evidence connecting Mr. Lopez to the charge conduct.

Then as I think many people know from the five who had their convictions vacated before yesterday, much, if not, almost all of the evidence was based on statements by other young men, extraordinarily young men, I should say, boys at the time. Those statements have all been recanted. There was internal consistencies. It really grows from the same analysis that applied to the other five. No physical evidence, no reliable statements, and so it was certainly, in my view and in the court's view, time to take this step. I was humbled to be a part of it.

Brian Lehrer: When you say boys, I think Lopez was 15. I saw that you mentioned personally identifying with all the defendants from that case because you were a Black kid around the same age also from around there. Can you talk about how this hits you personally?

Alvin Bragg: Certainly. First and foremost, the matters about Mr. Lopez and the impact on his life and his incarceration and the collateral consequences that flow from that. Certainly, as someone who grew up in Central Harlem, as someone who went past Central Park every day to go to and from school, this case I think has for many, cast a long shadow over the criminal justice system.

Certainly, something that I've long been familiar with and I think in many ways has affected me as it did, I think a generation of people in their perception of things that can happen. It is, as I said, first and foremost, about Mr. Lopez. He was the one who was incarcerated and had the consequences, but I think there are broader messages here. That's a big part of our post-conviction justice unit, is to take the lessons and apply them forward.

Brian Lehrer: The guy who really attacked the woman jogger Trisha Meili later confessed and it was corroborated by DNA evidence. Do you have an alternative suspect in the robbery of the male jogger?

Alvin Bragg: There are, and you're right as to that. That was a big part of the reinvestigation in 2002. There are other people, in fact, one person who was connected to and served time in connection. We focused on these six because they were charged with the rape. There were others who were charged with other matters and they were not affected by yesterday's vacatur.

Brian Lehrer: Does this case suggest to you that the focus on wrongful conviction that we associate with Central Park Five should be accompanied by a focus on a false confession? I mean a larger focus in society. People know the Innocence Project and things like that. The focus is primarily on wrongful convictions. How about wrongful confessions?

Alvin Bragg: Look, I think wrongful confessions are a very significant piece of this. There were, as I said, the false statements, and people say, "If someone says they did it, they must have done it." You noted the Innocence Project. The Innocence Project and others, it's a growing and vast body of research on false statements.

What I would actually draw people's attention to here is, as to the other five, there were false statements implicating each other. Others here, we have a plea. Someone who pled guilty. Something that I think there's some scholarly research on and we need to think about is a look back, not just involving things that ended in a conviction by trial, but also extending to and looking at convictions by plea as we did yesterday.

Brian Lehrer: My guest listeners, if you're just joining us, is Manhattan District Attorney, Alvin Bragg. We can take some questions from you for him. Please, be specific about cases or approaches to the job of DA in your questions, 212-433-WNYC, 212-433-9692, or a tweet @BrianLehrer. DA Bragg, let me ask you next about the charges you also dropped against Hamilton Heights, Bodega worker, Jose Alba.

Some people have asked, after seeing the surveillance video of that incident on TV or on the web, how did you even get so far as to charge him with murder in the first place because it looked so clearly like a case of self-defense? Can you take us through some of the sequence of events from the standpoint of your office's investigation?

Alvin Bragg: We filed a motion to dismiss, which sets forth our reasoning. I tend to speak in court as to specific cases, but I can talk generally about the process of a case. The processes, many of our cases begin with an NYPD arrest as that one did. Certainly, I think most people expect when there's someone who's dead, and then someone who has taken an act to cause that death, that that person be arrested. That happened here and then the person then goes before a judge.

The next step, if the case is going to go forward is, a case like that, a presentation to a grand jury. In between that period, my officer's work and our obligation and my commitment to the people of Manhattan is that we're always going to do a thorough, independent, fact-finding investigation. I know people want that to go faster and there was commentary and there were news articles, but our job here is to focus on the evidence.

That's what the career prosecutors did here. Then when we arrived at, based on the evidence, a conclusion, we filed a motion in court explaining that to the public. That's our commitment. When there's an arrest by the NYPD for a death in Manhattan, we are going to investigate that thoroughly and independently and arrive at a conclusion based on the evidence.

Brian Lehrer: Is this kind of surveillance video not in the original lot of evidence that gets evaluated before an initial charge?

Alvin Bragg: I'll say that we sometimes have video at the outset. Seldom do we have all of the evidence at the outset. That's why we have to investigate. We have evidence that, for example, video from one perspective, but not another. Sometimes the video cuts out. Sometimes the video doesn't have audio and there are witnesses who can complement and add in pieces to the puzzle. That's the work of the office, getting all of the evidence before we decide to go forward in the grand jury, which is necessary before  proceeding the trial in New York state.

Brian Lehrer: Where is the line for when someone is allowed to use deadly physical force under New York state law because, with the Alba case, the video clearly shows the attacker who has now lost his life, Austin Simon, cornering Alba and certainly looking like he was going to physically harm him, but I'm not sure if it actually showed him trying to physically harm him at that point.

I saw a clip of Simon's girlfriend saying Simon was the one who was not armed in that case and his life doesn't seem to mean anything to anyone now. What's the law in that situation as to when someone can attack as Jose Alba did?

Alvin Bragg: Right. This is why it's so important to conduct investigation where a lot of people talking about the law. The statute, it has many dimensions. The statute talks about the use of deadly physical force. If one has a reasonable belief that they are in danger of imminent deadly physical force or serious physical injury, the statute then defines those terms. I think a lot of the conversation as we would be expected, people look at the video and deal in colloquial terms our obligation as prosecutors.

In fact, I like the fact that you pointed to him and there was a person who was dead. There was a person who had a family, who lost a life. That's somber. That's a sober moment. Obviously, the restriction of one's liberty and incarceration is I believe one of the most potent government powers and one that's be taken upon deliberate consideration. When we have someone who is dead and a family that is rightfully grieving, I think we have to think about that too and talk about that.

Our role is to look at all of the evidence and apply it to the legal standard as defined by the statute as passed by the legislature. That's what we did and then we laid it out. Anyone who wants to really look at the standard, we laid it out not just the standard. I just articulated but there's another standard applicable to when you go behind the counter and related to burglary, that's all laid out in our motion papers.

I thought that was an important thing to do as a public education component. Now, we can't talk during the pendency of an investigation about the facts that wouldn't be appropriate for me to make extrajudicial comments, but what was appropriate-- but out of the ordinary, I would say is that we made a motion in court.

You're really laying bare as opposed to just saying, "We're not going to go forward in that," and maybe doing an oral explanation to the court. I commend to you and anyone who really wants to take a dive into the statute, it's all laid out in our motion papers, although, as I say that, I know that we had a ceiling application so I think that the time to do so was running close to the end.

Brian Lehrer: Further to that public education process, some advocates for Bodega say, there should be a stand your ground law in New York that would allow someone to attack without attempting to retreat first from an aggressor in certain circumstances. How far is the current law from that premise?

Alvin Bragg: It's a very different standard. I think standard ground means different things to different people, but that's certainly not the law. There's a duty to retreat under a number of circumstances in New York. When I think of standard ground, I think of the Florida matter in Trayvon Martin. Certainly, we're operating under New York law and not under stand your ground. I'm not an advocate of the stand your ground. I think we saw what happened with Trayvon Martin.

Brian Lehrer: Trayvon Martin.

Alvin Bragg: That's not the law here. That's not the law in New York state and I don't think we should move in that direction.

Brian Lehrer: Manhattan DA, Alvin Bragg, our guest here on WNYC. Critics of New York's bail reform law have contrasted the Jose Alba case with the one against the man who allegedly attacked Republican gubernatorial candidate, Lee Zeldin, with some kind of a pointed object during the campaign speech upstate the other day. This is not about you, I should say to our listeners because that wasn't in Manhattan so it's not your jurisdiction.

That guy was only charged with second-degree attempted assault, which meant he could not be required to pay bail or be jailed awaiting trial, but he was trying to attack, maybe assassinate a candidate for governor in our democracy allegedly. Some people see the system as really inverted when Jose Alba had to go through what he went through and the other guy cannot even be required to post bail under New York's recent law. Does it make sense to you?

Alvin Bragg: I'm certainly not going to comment on another, at this point, ongoing federal investigation as a former federal prosecutor and actually use the statute that I assume is being used there, but not going to comment on that. I will I think underscore what I think is the glaring difference which is that in the Manhattan case, there was someone who was dead. Obviously, our system looks to harm, and the ultimate harm is obviously death. Without commenting on the specifics there, I do think that's a noteworthy distinction.

Brian Lehrer: Although the guy who's been charged federally with plotting to kill Brett Kavanaugh, the supreme court justice, he didn't get to do it either but I think he's been charged with something much more serious. What do you think about that as a comparison?

Alvin Bragg: Again, I don't know the proof in those matters. Again, as I said, as a federal prosecutor, I'm familiar with the conspiracy laws and what your intent is, and so having an intent to kill, if in fact, that is the evidence, there is obviously also very, very serious. I don't mean to suggest that the other harms in these matters is not significant, but I do think it is worth noting and underscoring that in the Alba matter, there was someone who was-- When they timed the NYPD arrest that made the arrest for a murder, there was quite literally a dead person, and that's an undisputable fact and I think a significant one.

Brian Lehrer: We're going to take a phone call now. This goes back to the vacating of the charges against Steven Lopez, the so-called sixth member of the Central Park Five. It's Ben in Belmore. You're on WNYC with Manhattan DA Alvin Bragg. Hi, Ben.

Ben: Good morning, Brian. Thank you for taking my call. I'd like to ask a question in terms of when you vacate this plea, what happens to the attorney that's representing them because they make some affirmations and they make representations that their representation was sound and they're happy with it before taking any kind of plea? Is there a ground to charge the representing attorney? Surely, there's somebody representing them, whether it's legal aid or private counsel.

Alvin Bragg: Thanks, Ben, for the question. I take it to refer to not Mr. Lopez's current lawyer, but his lawyer back when the plea was entered. Certainly, when we do these reinvestigations where we're looking at and talking to all the witnesses. I think suffice it to say without getting into the details of this matter, I think there were a lot of things that happened at that moment that we now know to be different over the passage of time and investigation that were not known then.

The hair sample comparisons later being deemed unreliable, resulting in no physical evidence being there. The statements that were made at the time that were then later recanted. I think this is certainly a fair question. I think one that we need to be thinking about when we think about wrongful convictions. We have lots of inputs that lead to them, false confections, not in this case but often a faulty witnessing identification, unreliable evidence.

One of those can sometimes be inadequate assistance of counsel by defense lawyer. I'm not saying that that happened here because as I said, we had circumstances that changed, but in a general matter, I do hear your question and think it's something that as we go forward and apply the lessons forward is one of the things that the research says we should be taking a look at and kicking acceleration.

Brian Lehrer: A call on the Jose Alba case, Patrick in Englewood, you're on WNYC with DA Bragg. Hi, Patrick.

Patrick: Good morning. Thank you for taking my call. My question has to do with the role of proportionality in your analysis. This is my understanding that Mr. Alba stabbed Mr. Simon five times, once in his jugular and four times in his thoracic region. If that is true, I timed it out, it took me three seconds, a little over three seconds to do that.

My question to you is what role does proportionality now play in self-defense? Can someone in [unintelligible 00:19:36] then says, "No," report an AR-15 and shoot someone if they were merely shoved? What's the limit and why did we not stick to the rule as the Brits gave it us in English common law? Thank you.

Alvin Bragg: Patrick, the proportionality is something that's embedded in our self-defense standard in

that they're actually two separate standards. There's instances when one can use physical force in the face of a reasonable fear of imminent use of physical force against you or a third person, and then the statute makes a clear distinction for when you can use deadly physical force.

I did a little bit of the standard with Brian a few moments ago, but that proportionally is embedded in the question, and this is why we investigate and look at the evidence and don't just look at the video once, but to breakdowns and talk to witnesses and listen to audio and look at the forensics. You mentioned a number of times staff, but all of this is laid out in our papers. You have to talk to the medical examiner. All of these factors matter as we apply that to the law.

Proportionality is embedded, and then also you have to look at each use of force as to was there a reasonable belief of imminent use of deadly force against you. I think you're completely right, to look at and focus on that. That's one of the reasons why we have to investigate. We have to investigate and really look at the evidence in a very granular way, so we can reach a conclusion, consistent with and warranted by the law.

Brian Lehrer: Thank you for your call, Patrick. In relation to Lee Zeldin and some of his supporters saying that he should, or he says he would fire you if he's elected governor. Lily in Manhattan has the phone call. Lily, you're on WNYC. Thank you for calling for Manhattan [crosstalk]

Lily: Yes, I have worked as a social worker, so I know a thing or two about social problems. Let me be very clear. Mr Bragg knows nothing about anything. I have never heard him--

Brian Lehrer: Do you think that's a little broad Lily, do you have a specific question?

Lily: My specific point is everyone knows that crime is on the rise because the criminals know that the DA won't lock them up. Bragg should be recalled. He never discusses public safety. His job is public safety. He is not doing his job. We, the taxpayers are paying you. Where all for looking at miss people who are convicted wrongly, we're all for that, but you are also responsible for public safety. I have never heard you mention public safety. You belong in The Legal Aid Society or The Fortune Society. You do not behave like a District Attorney and you should be recalled. You are letting down the people of this city. I'm sure you know, that the victims are from all races.

Brian Lehrer: Lily, thank you for your call. Let me turn that into a question, DA Bragg. The overall impression that your critics have as I think was articulated right there, you're passionate, as you've noted about exonerating the wrongfully convicted, are you as passionate about getting violent criminals off the street?

Alvin Bragg: Let me be clear and unequivocal about this, Brian. I have served as a federal prosecutor, I've served as a line say prosecutor in Court, I have served as the number 2 prosecutor for the State of New York, in the Attorney General's office. I've spent a career doing this and that involves cases from armed robbery to cases involving sex offenses, to public corruption. I've been doing that and we're doing that every day in the Manhattan District Attorney's Office.

Let me just start with some facts. I appreciate Lilly's point and perhaps I'm not talking about it enough, let me use some time to talk about it now. Homicides are down 6% in Manhattan. Homicides are down citywide as well, but importantly in Manhattan, they're down and shootings are down in Manhattan, 12.8%. We certainly have a lot more work to do, but I think those are statistics that are trending in the right direction.

How do we get there? We got there through very hard work by career prosecutors in the office. I think the number one issue facing the island is gun crimes. Year to date, we brought 360 gun cases. That's ups significantly from last year. Now that's tragic that the number is up, that the cases are there to be prosecuted, but we're doing the work.

I highlight other New Yorkers are concerned about our transit system and our trained safety, we've had some significant trials this year, holding people accountable for doing violence on our trains. I take Lilly's point, I'm a prosecutor by trade and not an elected, not a politician. We are leaning into and making clear that the public is knowing that we're doing these things.

The person who did the triple stabbing on the subway was convicted at trial and now has a 14-year prison sentence. We did three very significant gun trafficking cases that are in the process of being litigated with guns flooding here from Down South in North Carolina and ghost gun parts coming from Pennsylvania. The work is happening every single day. I'm happy that Lilly asked that question or made that statement to give me the opportunity to really underscore that people know what we're doing to keep Manhattan safe.

Brian Lehrer: Some of your critics might say if crime is down in Manhattan, it's partially because you walk back some policies that you had announced in a memo in your first week in office. As described by Gothamist, for example, under the original memo, you had instructed prosecutors to charge certain cases involving a weapon as a misdemeanor, petty larceny.

If the force or threat of force consists of displaying a dangerous instrument or similar behavior but does not create a genuine risk of physical harm. You reverted back to the office's original position. Gothamist says commercial robbery at knifepoint or by other weapon that creates a risk of physical harm will be charged as a felony. Can you explain your thinking in the original memo and the revision?

Alvin Bragg: Sure. First, let me say the statistics I just said were about shootings and homicides, and I've been clear for 20 years in terms of my body of work in that space. I think as to those statistics, there is really a straight line between what we're doing. Now moving to something like shoplifting and commercial theft, certainly as I said, back in January I think there was certainly confusion about what we wanted to do. We've since clarified that.

I think there was a sense that there was going to be a one size fits all, and we made clear in a follow-up memorandum that we're looking at each individual instance, and we've been, been doing that. We fall formed a small business Alliance and partnered with NYPD and have been looking at the data. It's an interesting comparison to actually what we do in the gun space, which is where we're looking at a relatively small number of people who are driving the most significant gun violence.

In the commercial theft context, approximately 18% of the people who are arrested for shoplifting account for more than 50% of the conduct. We've been along with our NYPD partners and our Community Partners focusing on that group. Again, a long way to go. I'm not here to say that we've solved any of these problems, but I think we see it trending in the right direction. I guess the specific response to your question is that we're going back to the beginning, we're following the evidence and applying the evidence to the law in each [unintelligible 00:28:02]

Brian Lehrer: It sounds like you did make a change from your original default position to taking it more case by case on whether those would be charged as felonies. Is that fair?

Alvin Bragg: I think to the extent it is certainly fair that what you said what our position is now what I just said, to the extent folks took it to mean that we weren't. If you look at the cover page of the memo, it talked about doing it in a dynamic way, but certainly, I take your point that that was the broad perception, which is why we needed to correct it.

Brian Lehrer: Since you made the distinction between commercial robbery at knifepoint, which that example was about, and how you approach guns, one other example, Gothamist said, in relation to the original memo and then a change, Bragg also clarified his stance on gun prosecution saying, "The default in gun cases is a felony prosecution." Now, as I recall, you had said on this show after your election, that there should be a difference between people who simply own a gun illegally and are caught with it, and those who use it in a crime. Where are you on that now?

Alvin Bragg: Look, I think certainly there is a difference in terms of what we can charge and in terms of the penalty, and it goes back to your comparison of the case in Rochester. The harm matters, and so we are certainly prioritizing shooting cases, homicide cases and I think that's why you see those numbers coming down, but we're also are doing good gun possession cases.

Like I said, we've got about 360 cases we've done so far. I do think the trafficking cases that we're, I mentioned when we're dealing with guns coming in from North Carolina, in Pennsylvania, the cases where someone is at least, in one of those cases is selling 20 guns at a time. I think that is different from someone who's carrying one gun and we are treating them differently. I think that's appropriate.

Brian Lehrer: Lee Zeldin, as I mentioned, is campaigning

around the state on a plan to fire you if he's elected governor. Even though you were elected by the people of Manhattan alone, do you have any comment on what the law would even allow in that regard or about him making you the face of unseriousness about crime in New York and the way that he is as a political candidate?

Alvin Bragg: I'm going to let those on the ballot do their political campaigns, but we're going to focus on the work of keeping Manhattan Heights safe.

Brian Lehrer: George in Manhattan. You're on WNYC with DA Alvin Bragg. Hi, George.

George: Good morning, Brian. Thank you for letting me on. My question is about a possible prosecution of Mr. Trump. Your predecessor had a specialized counsel brought in to do it. When you came in at some point, somebody made the decision that either there was insufficient evidence or the inability to turn a key witness. We've heard very little since then. I would think that it's still pending. It has not been dropped, at least not officially. Could you bring us up to date on what if possible might happen in terms of the prosecutor's office looking into issues that were brought up?

Alvin Bragg: Sure. As an instance of the Alba matter where we weren't talking about it during the dependency of it. I have the same legal ethics constraints which are basically you could impair the investigation, but I do appreciate the question and can say that we have a incredibly talented team that is still working on investigation. Investigation is open and active and in very good hands in terms of career prosecutors who've built complicated complex cases.

What we have said is that when we resolve the investigation, we will make that public so that you're right. I think the way you framed it, George, was perfect, which is that the investigation's ongoing, and people should assume that and know that. At the moment it is not much like we were public in resolving the Alba matter that we will be public and what we go forward. However that may be, whether that's with a charge or without a charge, we will let the public know. As I said, in the Alba context, I think that's important [crosstalk] to let the public know.

Brian Lehrer: You're saying this is an ongoing investigation. I think people who've been following it in the news may have the impression that it's already been dropped, these financial crimes that may have been committed by Trump, that your predecessor DA Cyrus Vance had been investigating. It's been in the press that the chief financial officer of the Trump organization was charged by Vance.

It's been in the news that several top prosecutors in your office resigned because they thought you were being too cautious in not pursuing that case further against Trump himself in the way that they wanted. They seem to believe Trump committed fraud by obtaining loans from banks based on false information. You're saying that investigation is ongoing. What would it take or when might the public expect that you would have a resolution one way or another of whether to charge?

Alvin Bragg: Sure. First, I think you were making reference to Allen Weisselberg and that's a matter that's a charged, that's not just an active investigation, that's an active matter that's in pre-trial litigation. We anticipate would move to trial in the fall. That would be obviously very, very public. That's a matter that that's going forward and then that's unequivocally so. In terms of what we're doing, I don't want to describe it, but suffice it to say that there are a number of avenues that we're not explored before that we are exploring and I think is important.

I would just draw your attention to as you point to others, look I'm someone who's got a 20-year history of doing complex white-collar investigations, doing investigations involving high profile people, whether that's suing the Trump Foundation and leading that work at the AG's office. Whether it's helping lead the prosecution against Malcolm Smith, the former Senate majority leader.

Any one of a number of high-profile white collar investigations. That's me, and then I could also go down a line in terms of the team of who's working on it now. It's an extraordinary team of very capable prosecutors. I can't put a timeline on it because that would be inappropriate, but I can certainly say that we're actively working and that there is a public matter that's already been charged that I think we anticipate will be tried in the fall.

Brian Lehrer: All right. Well, we are just about out of time. I want to thank you for sitting for so many questions on so many cases and also the general principles of the law that underline some of these things. I certainly understand the limitations for commenting on cases that are currently in progress or under investigation. Any last thing you want to say to the people who may not have seen you so much or heard you so much in the media since you took office as opposed to others who for whatever the reasons want to make you a lightning rod?

Alvin Bragg: I would maybe return to Lily's point. I think that's a good place to end to the extent that people haven't heard me talk about public safety. I think that they should know that we are doing cases that keep Manhattan Height safe every day. I've talked about some of them. I've talked about a number of our gun cases. I haven't talked about hate crimes. We went to the city council and got 1.7 million in funding to expand that unit. We've revamped and created a division focused on special victims, domestic violence, and sex crimes.

We have extraordinary people who are doing that work every day, sober work, important work. People should know that. We're talking about that work all the time. We're going to continue to talk about it and continue to do the work so we can continue to go in that right direction. As I said, homicides down is 6%, shootings down 12.8%. We're going to see that continuing. We want to see that direction on other criminal conduct as well. I appreciate the opportunity,

Brian Lehrer: I appreciate you having this conversation with us a couple of times here so far and we look forward to continuing, thank you, DA Alvin Bragg. We really appreciate it.

Alvin Bragg: Thank you.

 

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