| People v Frantz |
| 2008 NY Slip Op 09814 [57 AD3d 692] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mThe People of the State of New York, Respondent, v JeanRudy Frantz, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County(Hollie, J.), dated June 1, 2005, which denied, without a hearing, his motion pursuant to CPL 440.10 tovacate a judgment of conviction of the same court (Finnegan, J.), rendered September 17, 1997,convicting him of murder in the second degree (two counts), robbery in the first degree (two counts),robbery in the second degree, and criminal possession of a weapon in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the order is reversed, on the law, and the matter is remitted to the Supreme Court,Queens County, for a hearing on the defendant's motion to vacate the judgment based on allegedBrady violations (see Brady v Maryland, 373 US 83 [1963]) associated with allegedstatements of Kim Henderson, and a new determination thereafter, which should set forth its findings offact, conclusions of law, and reasons for its determination in accordance with CPL 440.30 (7).
Following a jury trial, the defendant was convicted of murder in the second degree (two counts),robbery in the first degree (two counts), robbery in the second degree, and criminal possession of aweapon in the second degree arising from a July 13, 1994, incident in which a livery car driver wasrobbed and killed. At trial, the People's main witness, the defendant's accomplice, Kim Henderson,testified that he, the defendant, and Phil Johnson kidnapped and robbed the victim and that he saw thedefendant and Johnson shoot the victim. In exchange for his testimony against the defendant,Henderson testified that he agreed to plead guilty to first-degree robbery in this case and be sentencedto 6 to 12 years. The defendant moved to vacate the judgment of conviction on the grounds that hiscounsel was ineffective for, among other things, failing to inform him of a pretrial offer and that thePeople failed to disclose certain pretrial statements made to the police by Henderson and Johnsonwhich constituted Brady material (see Brady v Maryland, 373 US 83 [1963]). TheSupreme Court denied the defendant's motion without conducting a hearing and setting forth anyfindings of fact or conclusions of law.
The People are obligated to disclose exculpatory evidence in their possession which is favorable tothe defendant and material to the issues of guilt or innocence (see Brady v Maryland, 373 US83 [1963]; People v Scott, 88 NY2d 888, 890 [1996]; People v Steadman, 82NY2d 1, 7 [1993]). Moreover, the duty of disclosing exculpatory material extends to disclosure ofevidence impeaching the credibility of a prosecution witness whose testimony may be determinative ofguilt or innocence (see Giglio v United States, 405 US 150, 154-155 [1972]; People vBaxley, 84 NY2d 208, 213 [1994]). Here, the defendant argues that Henderson's alleged pretrialstatements that he did not see the defendant or Johnson with a weapon, that the alley in which the victimwas shot did not possess enough light for him to determine whether the defendant possessed a gun, andthat he was able to see what appeared to be Johnson aiming and shooting the victim, were undisclosedBrady material. It is unclear whether the defendant's trial counsel, although aware thatHenderson was interviewed on several occasions, knew of these specific statements made byHenderson. These statements contradict Henderson's trial testimony that he saw the defendant handlinga gun and that he saw both the defendant and Johnson shoot the victim. Significantly, Henderson'scredibility was critical as he was the People's only witness to testify that the defendant possessed aweapon and actually shot the victim. The other evidence connecting the defendant to the chargedcrimes were the results of forensic testing which revealed that fingerprints taken from the victim's carmatched those of the defendant. Under these circumstances, a hearing is warranted as there arequestions of fact as to whether Henderson's statements were disclosed to the defendant's trial counseland whether, in the context of the entire trial, "there is a reasonable possibility that, had that materialbeen disclosed, the result would have been different" (People v Bond, 95 NY2d 840, 843[2000] [internal quotation marks omitted]; see People v Vilardi, 76 NY2d 67, 77 [1990];People v Lantigua, 228 AD2d 213, 220 [1996]).
Additionally, the Supreme Court should also set forth the required findings of fact, conclusions oflaw, and reasons for its determination on the issue of ineffective assistance of counsel (see CPL440.30 [7]; People v Williams, 184 AD2d 608 [1992]; People v Brown, 66 AD2d785, 786 [1978]).
The defendant's contentions regarding statements attributed to Phil Johnson are without merit (see People v LaValle, 3 NY3d 88, 110[2004]; People v Doshi, 93 NY2d 499, 506-507 [1999]; People v Bryant, 247AD2d 400 [1998]). Rivera, J.P., Dillon, Covello and McCarthy, JJ., concur.