| People v Williams |
| 2008 NY Slip Op 02914 [50 AD3d 1177] |
| April 3, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ErnestWilliams, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Rose, J. Appeals (1) from a judgment of the Supreme Court (Lamont, J.), rendered April 1,2004 in Albany County, upon a verdict convicting defendant of the crimes of robbery in thesecond degree and criminal possession of stolen property in the fourth degree, and (2) bypermission, from an order of said court, entered August 20, 2007 in Albany County, whichdenied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, withouta hearing.
At defendant's trial on charges of robbery in the second degree and criminal possession ofstolen property in the fourth degree, the victim, a pedestrian, testified that a black male grabbedher pocketbook as he drove by her in a car, dragging her to the ground as he sped away with it.She could not, however, identify defendant as the person who had robbed her. It was thetestimony of Michael Flood, a possible accomplice, that placed defendant in the driver's seat ofFlood's car at the time and place of the robbery. Flood related that while he was riding in the carin the area where the robbery occurred, he heard a scream, defendant threw a pocketbook ontohis lap and, upon looking back, he saw the victim on the ground. Another witness, CharlesKirkley, corroborated this testimony by averring that defendant and Flood came to his apartmentlater on the day of the robbery with a black pocketbook, credit cards and other personal items.After Flood and Kirkley were excused and the People were about to close their case, defensecounsel discovered through cross-examination of a police officer that they had each madestatements about the robbery and their possession of stolen property which had been recorded,[*2]but not previously disclosed. After reviewing the officer'snotes and finding other potentially exculpatory materials in the prosecutor's file, defense counselargued that their untimely disclosure constituted Rosario and Brady violationswhich severely prejudiced defendant, and moved for dismissal of the charges. While SupremeCourt agreed that the nondisclosure was "an egregious violation" and rejected the prosecutor'sexplanation of why the materials were not disclosed, it reserved decision on defendant's motionand directed the recall of Flood and Kirkley for further cross-examination.
The next morning, the People were able to produce Flood, but not Kirkley. Supreme Courtthen denied defendant's motion for dismissal and, instead, offered his counsel the opportunity toimmediately cross-examine Flood. When counsel stated that he was not going to accommodatethe prosecution's violations by doing so, the court told him that he could refuse only after Floodwas on the stand and the jury was present. As a result, counsel did ask Flood a few additionalquestions. The court also denied defendant's motion to strike Kirkley's earlier testimony despitehis unavailability because it found the materials regarding him to be immaterial or notinconsistent with his testimony. After the jury found him guilty as charged and he was sentenced,defendant moved to vacate the judgment of conviction pursuant to CPL 440.10 (1) (h), citing theRosario and Brady violations revealed during trial. Supreme Court denied themotion. Defendant now appeals that order and the judgment of conviction.
While we find little merit in defendant's other arguments, we are persuaded that SupremeCourt erred in denying his motion to set aside the verdict on the ground that he was substantiallyprejudiced by the People's failure to timely disclose significant Rosario and Bradymaterials. The Rosario rule, codified in CPL 240.45, "obligates the prosecution todisclose any recorded statement in its possession or control made by a person the prosecutorintends to call to the stand, which relates to the subject matter of the witness' testimony"(People v Santorelli, 95 NY2d 412, 422 [2000]; see People v Rosario, 9 NY2d286, 289 [1961]). A failure to timely disclose such statements, however, is grounds for reversalonly if the defendant shows "that there is a reasonable possibility that the non-disclosurematerially contributed to the result of the trial" (CPL 240.75; see People v Crandall, 38 AD3d 996, 997 [2007], lv denied9 NY3d 842 [2007]; People vOglesby, 12 AD3d 857 [2004], lv denied 5 NY3d 792 [2005]). A Bradyviolation occurs when the People fail to timely disclose all exculpatory and material evidence(see Brady v Maryland, 373 US 83 [1963]), including evidence that could be used tochallenge the credibility of a crucial prosecution witness (see People v Baxley, 84 NY2d208, 213 [1994]) or that would reflect a cooperation agreement between a witness and theprosecution (see People v Steadman, 82 NY2d 1, 7-8 [1993]; People v Novoa, 70NY2d 490, 496-497 [1987]). Where the People fail to disclose such evidence and where, as here,the defendant has made a specific request for such materials, reversal is required "if there is a'reasonable possibility' that, had that material been disclosed, the result would have beendifferent" (People v Bond, 95 NY2d 840, 843 [2000]; see People v Vilardi, 76NY2d 67, 77 [1990]; People vMcBean, 32 AD3d 549, 551 [2006], lv denied 7 NY3d 927 [2006]). However,even where such evidence is not disclosed until after trial begins, such an error will not requirereversal as long as the defense was afforded a meaningful opportunity to use it to cross-examinethe People's witnesses or as evidence-in-chief (see People v Cortijo, 70 NY2d 868, 870[1987]; People v Swansbrough, 22AD3d 877, 879 [2005]; People vMonroe, 17 AD3d 863, 864 [2005]; People v Tessitore, 178 AD2d 763, 764[1991], lv denied 79 NY2d 1008 [1992]).
Here, the record is clear that the People failed to disclose numerous Rosario andBrady materials until after their last witness testified and those materials could have beenused to [*3]challenge the credibility of crucial prosecutionwitnesses. As for Flood, the materials indicate that he had previously denied any knowledge ofthe robbery and claimed that he had been on the telephone with his wife and his car had beenstolen. They also call into question Flood's claim that he received no benefit from the People forhis cooperation in testifying against defendant because he was spared sentencing as a persistentfelony offender and his plea apparently satisfied a burglary charge beyond those to which hepleaded guilty. Nonetheless, because the defense was offered a meaningful opportunity to furthercross-examine Flood after counsel had reviewed the withheld Rosario and Bradymaterials, we find that defendant failed to show a reasonable possibility that the result at trialwould have been different if the materials had been timely disclosed (see People v Richard, 30 AD3d750, 754 [2006], lv denied 7 NY3d 869 [2006]; People v Ward, 282 AD2d819, 822 [2001], lv denied 96 NY2d 942 [2001]).
We reach a different conclusion, however, with regard to Kirkley. Contrary to Kirkley'stestimony, the Rosario and Brady materials regarding him included notes of apolice officer indicating that Kirkley had reported seeing a black pocketbook in the possession ofdefendant and Flood at his apartment on the Sunday before the robbery of the victim here andthat the pocketbook observed on the afternoon of the robbery had belonged to a different victimbecause its contents included a "lady's sheriff badge." In addition, the materials reflected that,contrary to his testimony that he was not a receiver of stolen property, Kirkley had participatedwith Flood in prior robberies and received a share of the items stolen. Further, the materialsincluded an inventory of stolen property recovered from Kirkley's apartment that could have beenused to challenge his testimony that he was not in possession of any stolen property. Since thesebelatedly disclosed materials could have been used to impeach the witness who corroborated thetestimony of the only person who testified that defendant was the perpetrator of the robbery, andsince the defense had accused Flood of the robbery here, their nondisclosure constitutedRosario and Brady violations that substantially prejudiced the defense (seePeople v Baxley, 84 NY2d at 213; People v Monroe, 17 AD3d at 864). Inasmuch asKirkley was not made available for further cross-examination, defendant had no meaningfulopportunity to use those materials. Moreover, this prejudice was not ameliorated by SupremeCourt's later instruction that the jury could infer that if Kirkley had been further cross-examined,his credibility would have been "further impeached" and his testimony would have contradictedthe People's other witnesses. Since the jury was not told in what respect Kirkley would have beenimpeached or how his testimony would have been different than before, this adverse inferencecharge was an ineffective sanction for the People's untimely disclosure. Accordingly, reversal anda new trial are necessary (see People vMitchell, 14 AD3d 579, 580 [2005]; People v Janota, 181 AD2d 932, 933-934[1992]; compare People v Osborne, 91 NY2d 827, 828 [1997]).
Peters, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment and orderare reversed, on the law, motion to vacate granted, and matter remitted to the Supreme Court fora new trial.