| People v Colon |
| 2008 NY Slip Op 08163 [55 AD3d 444] |
| October 28, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Danny Colon, Appellant. The People of the State of New York,Respondent, v Anthony Ortiz, Appellant. |
—[*1] Steven Banks, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), forAnthony Ortiz, appellant. Robert M. Morgenthau, District Attorney, New York (Patrick J. Hynes of counsel), forrespondent.
Order, Supreme Court, New York County (Michael A. Corriero, J.), entered October 18,2005, which denied defendants' CPL 440.10 motions to vacate judgments of the same court(Clifford A. Scott, J.), rendered October 5, 1993, convicting defendants, after a jury trial, ofmurder in the second degree and related crimes, and imposing sentence, unanimously affirmed.
The trial prosecutor failed to disclose notes from her interviews with two witnesses whopossessed potentially exculpatory information. The prosecutor also failed to disclose the fact thatshe assisted in the relocation of a prosecution witness's grandparents. Insofar as the relocationconstituted an additional benefit to the witness, the prosecutor improperly failed to correct thewitness's testimony that, other than a guilty plea to disorderly conduct, he had not been promisedany other benefit, and, in her summation, the prosecutor misstated the benefits the witnessreceived. Each of these acts or omissions was improper (see Giglio v United States, 405US 150 [1972]; Brady v Maryland, 373 US 83 [1963]; People v Novoa, 70 NY2d490, 498 [1987]).
Nevertheless, while we conclude the reasonable possibility standard applies (see People vVilardi, 76 NY2d 67, 77 [1990]), we find no reasonable possibility that the undisclosedinformation, the incorrect testimony and the prosecutor's comments during summation affectedthe verdict. The exculpatory documents contained layers of hearsay, not apparently admissibleunder any hearsay exceptions (see People v Burns, 6 NY3d 793, 794 [2006]; People vAlvarez, [*2]44 AD3d 562, 564 [2007], lv denied 9NY3d 1030 [2008]), and there is no basis other than speculation upon which to conclude that, ifdisclosed, they might have led to admissible exculpatory evidence. There is no evidence that thewitnesses, or the sources of their statements, would have been willing or able to testify at trial.As for the relocation of the witness's grandparents, its impeachment value would have beencumulative because the jury's awareness that the witness was receiving a favorable pleaagreement in exchange for his testimony "was far more crucial in assessing his credibility"(People v Sibadan, 240 AD2d 30, 35 [1998], lv denied 92 NY2d 861 [1998]).Moreover, there was other evidence against defendants, including the testimony of anotherwitness who identified them as the perpetrators of the crimes.
Except as indicated, we find no other violations of the People's obligations to discloseinformation or correct inaccurate testimony, and we reject defendants' arguments to the contrary.In the alternative, we find no reasonable possibility that any such violations affected the outcomeof the case. Concur—Lippman, P.J., Andrias, Buckley, Sweeny and Renwick, JJ.