| People v Daly |
| 2008 NY Slip Op 10177 [57 AD3d 914] |
| December 23, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v John P.Daly, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Margaret E.Mainusch of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the County Court, Nassau County(Peck, J.), dated December 21, 2006, which, after a hearing, denied his motion pursuant to CPL440.10 to vacate a judgment of the same court (DeRiggi, J.), rendered January 6, 2003, convicting himof robbery in the first degree (six counts), assault in the first degree (two counts), and attemptedrobbery in the first degree (two counts), upon a jury verdict, and imposing sentence by an amendedsentence of the same court, dated February 4, 2003.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's motion pursuant to CPL 440.10 which was to vacate that portion of thejudgment rendered January 6, 2003 convicting the defendant of robbery in the first degree under countsone through six of the indictment, and assault in the first degree under count eight of the indictment, andsubstituting therefor a provision granting that branch of the defendant's motion and vacating thesentences imposed thereon by the amended sentence dated February 4, 2003; as so modified, theorder is affirmed, and the matter is remitted to the County Court, Nassau County, for a new trial oncounts one through six and count eight of the indictment.
The defendant was charged in a single indictment with, inter alia, robbery and assault in connectionwith an incident at an off-track betting corporation (hereinafter OTB) site on January 14, 2001, andwith attempted robbery and assault in connection with a separate incident at a Mobil gas station onFebruary 26, 2001. In connection with the OTB incident, he was found guilty of six counts of robberyin the first degree and one count of assault in the first degree. We find that the defendant, on his CPL440.10 motion, established his entitlement to vacatur of those convictions rendered in connection withthe OTB incident, and for a new trial on those counts, based upon the [*2]People's failure to turn over certain witness statements, in violation ofPeople v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]) andBrady v Maryland (373 US 83 [1963]), and the reasonable possibility that the failure to turnover such evidence may have contributed to the verdict of guilt on those counts.
The defense theory of the case, insofar as the OTB incident was concerned, was that the defendantwas misidentified as the perpetrator of the robbery. His defense to the counts concerning the robbery ofthe Mobil gas station was that those crimes were committed by his tenant, who looked very similar tohim. In support of his CPL 440.10 motion, the defendant submitted certain witness statements, whichhad not been turned over to the defense before the trial, wherein the perpetrator of the robbery of theOTB was described, and the descriptions did not match the defendant's appearance.
One of the statements in question was included in certain notes memorialized during an interviewwith witness Peter Shank on January 16, 2001. The People turned over a signed statement by PeterShank, dated February 1, 2001, wherein he described the perpetrator of the OTB robbery as a whitemale, approximately 6'1" tall, between 175 and 190 pounds, with a slim build, and a long thin face andolive complexion. In the notes from the earlier interview conducted on January 16, 2001, which wereconcededly not turned over to the defense, Peter Shank described the perpetrator somewhatdifferently. Peter Shank testified at the trial describing the perpetrator as "6 feet 1 inch . . .close to maybe 190 in weight, maybe a little less, he had like not a dark complexion, but like anolive complexion . . . like an oval type, his face" (emphasis added).
Another witness, Terry Rogers, who did not testify at trial, gave a statement to police which wasnot turned over to the defense, in which she described the perpetrator of the OTB robbery as "darkskin Italin [sic] looking male approximately 5"10"[sic], athletic build, 160 lbs, longbrown hair." Other witness statements which were also not turned over to the defense, gave lessdetailed descriptions of the perpetrator which were partially consistent with the defendant's appearance,and partially inconsistent with it.
Rosario requires the People, prior to their opening statement, to turn over to the defenseany written or recorded statement of a person whom the People intend to call as a witness at the trial(see CPL 240.45 [1] [a]). The failure to do so does not constitute grounds to vacate ajudgment of conviction unless "there is a reasonable possibility that the non-disclosure materiallycontributed to the result of the trial" (CPL 240.75; People v Jackson, 78 NY2d 638 [1991]).
Here, only the statement of Peter Shank qualifies as Rosario material, as none of the otherwitnesses whose statements were undisclosed testified at the trial. While acknowledging that they wereobligated to turn over to the defense the notes of the interview with Peter Shank conducted on January16, 2001, the People nevertheless contend that reversal is not warranted because they did turn overPeter Shank's February 1, 2001 statement, and that statement contained information substantiallysimilar to the information contained in the January 16, 2001 notes. However, the January 16, 2001notes are not the duplicative equivalent of the February 1, 2001 statement, as there are significantvariations between the two. Statements will not be considered duplicative equivalents of one anothermerely because they are harmonious or consistent (see People v Ranghelle, 69 NY2d 56[1986]). In this case, while the undisclosed notes of the interview with Peter Shank are not totallyinconsistent with his disclosed statement, the undisclosed notes contain additional details missing fromthe disclosed statement, specifically, the description of the perpetrator as "dark complexion-tannedItalian."[*3]
This detail of the description of the perpetrator in theundisclosed notes of the interview with Peter Shank, not only was not part of his disclosed statement,but it closely mirrors part of the description of the perpetrator contained in the undisclosed witnessstatement of Terry Rogers, which constitutes Brady material. Considering these statementstogether, and the fact that both of these witnesses described the perpetrator as a dark-complectedItalian, which is significantly variant from the defendant's actual appearance, we cannot conclude thatthe failure to turn over the notes of the January 16, 2001, interview with Peter Shank did not contributeto the verdict herein. It is clear that, had the defense known that two separate witnesses described theperpetrator as a dark-skinned Italian, it would have used this information to bolster the theory that thedefendant was misidentified as the perpetrator of the OTB robbery.
Moreover, Brady requires the People to turn over any material to the defense that isfavorable to the defense, and entitles a defendant to a new trial where such material was not disclosedand the defendant was thereby prejudiced (see People v LaValle, 3 NY3d 88 [2004]).Furthermore, "[w]here the defense itself has provided specific notice of its interest in particular material,heightened, rather than lessened prosecutorial care is appropriate" (People v Vilardi, 76 NY2d67, 77 [1990]). Thus, where a specific discovery request has been made for evidence, putting thePeople in notice that the defense considered the material important, the standard is whether there is "a'reasonable possibility' that the failure to disclose the exculpatory report contributed to the verdict"(People v Vilardi, 76 NY2d 67, 77 [1990]).
We note that the defense specifically requested to be provided with material in the People'spossession with "any description of the robber at either place as given by any witness or victim, if thosedescriptions are not consonant with the appearance of" the defendant. The statement of Terry Rogers isBrady material, and the People improperly failed to turn it over to the defendant.
Based on the foregoing, the defendant is entitled to a new trial on counts one through six and counteight of the indictment, all of which related to the robbery of the OTB. We reject the defendant'sargument that there was a prejudicial "spillover effect" which warrants reversal of the convictionsstemming from the Mobil gas station robbery. The undisclosed material pertained solely to the OTBrobbery and the incidents were not factually related (see People v Baghai-Kermani, 84 NY2d525 [1994]; People v Clarke, 7 AD3d 537 [2004]). Lifson, J.P., Santucci, Balkin and Belen,JJ., concur.