| People v Mosby |
| 2010 NY Slip Op 00309 [69 AD3d 1045] |
| January 14, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Malik A.Mosby, Appellant. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Andrew M. McElwee of counsel), forrespondent.
Kavanagh, J. Appeals (1) from a judgment of the County Court of Tompkins County(Sherman, J.), rendered May 23, 2006, upon a jury verdict convicting defendant of the crimes ofcriminal sale of a controlled substance in the third degree (two counts) and criminal possessionof a controlled substance in the third degree (two counts), (2) by permission, from an order ofsaid court, entered October 18, 2007, which denied defendant's motion pursuant to CPL article440 to, among other things, vacate the judgment of conviction, and (3) by permission, from anorder of said court, entered July 28, 2008, which, upon renewal, adhered to its prior order.
After selling illegal drugs to undercover officers on August 10, 2005 and August 19, 2005,defendant was charged with three counts of criminal possession of a controlled substance in thethird degree and five counts of criminal sale of a controlled substance in the third degree.Following a jury trial, defendant was found guilty of two counts of criminal sale of a controlledsubstance in the third degree and two counts of criminal possession of a controlled substance inthe third degree and was subsequently sentenced, as a second felony offender, to an aggregateterm of 10 years in prison, plus postrelease supervision. County Court thereafter denied hismotion pursuant to CPL 440.10 and 440.20 to vacate his conviction, as well as his subsequentmotion to renew based upon newly discovered evidence. Defendant now appeals from hisjudgment of conviction and, by permission, from the denial of both his CPL article 440 motion[*2]and motion to renew.
Defendant argues that he was denied the effective assistance of counsel, that the Peoplecommitted Rosario and Brady violations, that he was denied the right to a publictrial and that he was improperly sentenced as a second felony offender. We find that there areunanswered questions regarding whether the People failed to disclose Rosariomaterial—specifically evidence regarding conversations between undercover officers whotestified at trial and defendant during a prior drug transaction between defendant and the officersthat was alleged to have occurred on July 27, 2005, two weeks before the sales that were thesubject of the indictment—and that, until there has been such disclosure and defendant hashad an opportunity to establish that these materials should have been made available to him attrial, we cannot pass on the merits of the issues raised in this appeal.
The facts are not complicated or in dispute. As the result of information received from aconfidential informant, defendant became a target of a drug investigation being conducted by theSpecial Investigations Unit of the Ithaca Police Department, as well as the State PoliceCommunity Narcotics Enforcement Team. A police officer working in an undercover capacitywas introduced to defendant by the informant on the afternoon of July 27, 2005 and, at that time,purchased from him a fentanyl transdermal patch and 11 pills containing oxycodone for $140.The officer also discussed making other buys from defendant and made arrangements by whichshe would contact him in the future.[FN1]At the time, the undercover officer was wearing a transmitter that recorded her conversation withdefendant and her activities were being monitored by other police officers surveilling thetransaction. Two weeks later, the undercover officer again contacted defendant and, on August10, 2005, while wearing a transmitter, purchased a quantity of cocaine from him. Nine days later,on August 19, 2005 the undercover officer again contacted defendant and, on this occasion,purchased from him cocaine, oxycodone and fentanyl. Of note, in their first contact on July 27,defendant told the undercover officer that he would next have a supply of fentanyl on the 19th ofthe month, or the date that this transaction took place. Shortly thereafter, a sealed indictment wasreturned charging defendant with the narcotics sales that occurred on August 10 and 19, but didnot contain any charges against defendant as to the first sale that had occurred on July 27.
Prior to trial, defendant made a timely demand for, among other things, all Rosariomaterial and, in that regard, was provided with statements and recordings made by the People'strial witnesses in connection with the drug transactions charged in the indictment. However, hewas not provided with any material regarding the July 27, 2005 transaction, even though theundercover officer who made that buy and a police officer who surveilled that transactiontestified at his trial. When defendant subsequently uncovered information regarding this sale andits relation to the charges contained in the indictment, he moved to set aside his convictionpursuant to CPL 440.10 on the ground, among other things, that Rosario material had notbeen provided to him as to some of the witnesses who testified at trial. The People take theposition that, because this sale was not charged in the indictment and no evidence of thisencounter was introduced at trial, they were—and continue to be—under noobligation to disclose any of this material. County Court, while appearing to accept thisargument, denied defendant's motion to [*3]vacate his judgmentof conviction on the ground that he had already been provided with the "duplicative equivalent"of these materials and any disclosure was not required.[FN2]The court arrived at this conclusion and rendered its decision on defendant's motion without ahearing or without conducting a review of the materials in question.
In any criminal prosecution, the People are required to "make available to the defendant. . . [a]ny written or recorded statement . . . made by a person whomthe prosecutor intends to call as a witness at trial, and which relates to the subject matter of thewitness's testimony" (CPL 240.45 [1] [a]; see People v Rosario, 9 NY2d 286, 290-291[1961], cert denied 368 US 866 [1961]; People v Hall, 268 AD2d 682, 683-684[2000], lvs denied 94 NY2d 920 [2000], 95 NY2d 797 [2000]). The People argue, andthe dissent apparently agrees, that any statements made by the undercover officer regarding thebuy of July 27, 2005 and, in particular, the recording of her conversation with defendant, are notRosario material because this illegal sale of narcotics was not charged in the indictment,nor was any testimony regarding this transaction introduced into evidence at trial.[FN3]
The obligation imposed by Rosario is not so limited or so strictly defined. In thatregard, we refer to People v Baghai-Kermani (84 NY2d 525 [1994]) where, understrikingly similar circumstances, tape recordings compiled during a criminal investigation weredeemed to constitute Rosario material and convictions were reversed due to the People'sfailure to disclose them when the witness who made them testified at trial (id. at530-531). In that case, undercover police officers purchased prescriptions for controlledsubstances from the defendant at his medical office and testified to the details of each transactionat trial (id. at 528-529). After the defendant was convicted of 10 separate counts inregard to the illegal sale of these prescriptions, it was learned that one of the investigators hadmade tape recordings that bore on his relationship with the defendant and had not been disclosedat trial (id. at 529). One of the tape recordings was made when the investigator went tothe defendant's office to buy a prescription, but was turned away without seeing the defendantbecause the office had run out of prescription forms (id. at 529-530). The investigatordid not testify to this trip to the defendant's office, and nothing contained in the indictment madereference to it (id. at 530). Despite these facts, the tape recording was deemed to beRosario material and the convictions of the defendant based on this investigator'stestimony were reversed because this tape recording—and another—had not beendisclosed to the defendant at trial even though both "included statements by a trial witness abouthis criminal transactions with [the] defendant" (id.; see People v Brome, 278AD2d 745, 747-748 [2000]; People v Palma, 224 AD2d 363, 365 [1996], lvdenied 88 NY2d 883 [1996]).[FN4]
Here, the connection between the undisclosed tape recording and the issues raised at trial iseven more compelling. For example, we now know that the July 27, 2005 sale was the first directcontact that any police officer had with defendant during this investigation and that, during thisencounter, future sales of illegal drugs were discussed. It involved the same principals discussingthe same illegal subject matter and occurred only a short time before the crimes charged in theindictment were committed. In addition, this transaction served to define the parameters of theundercover officer's future relationship with defendant and undoubtedly facilitated the sales ofillegal drugs of which defendant now stands convicted. Given these facts—none of whichare in dispute—the importance of this first transaction and its relevance to the entireinvestigation of defendant can hardly be overstated. For that reason, the tape recording and anyother materials that document the undercover officer's conversation with defendant should befully disclosed and a more thorough inquiry of their contents should be conducted before anydecision is made as to whether it was reversible error not to turn them over to defendant whenthese witnesses testified at trial. To simply reply upon an affidavit of a police officer, who didnot participate in this transaction and had no contact with defendant prior to his arrest, for theproposition that these materials had no relevance to this proceeding in the face of uncontrovertedproof to the contrary does not accord this defendant with any fair measure of due process (seePeople v Brome, 278 AD2d at 748; see generally People v Williams, 50 AD3d 1177 [2008]).
It may not have been in defendant's interest, given the illegal activity involved, to have anyof these materials disclosed at his trial, and it is questionable whether he will be able to establishthat, if there had been timely disclosure of these materials, a "reasonable possibility" exists thatthere would have been a different verdict (CPL 240.75; see People v Jackson, 78 NY2d638, 649 [1991]; People v Williams, 50 AD3d at 1179; People v Tucker, 40 AD3d 1213,1216 [2007], lv denied 9 NY3d 882 [2007]). However, no claim has been made thatthere are any public safety concerns that will be compromised by the disclosure of thesematerials,[FN5]and there is no legitimate reason not to allow defendant to review these materials and providehim with a meaningful opportunity to show that, if he had them at trial, there is reason to believethat there would have been a different result. For that reason, we remit the matter to CountyCourt for [*4]a hearing—after the People have disclosed tothe court and defendant all documents or recordings relating to the July 27, 2005 incident thatwere produced by, or contain statements made by, any police witness who testified attrial—for a determination whether the previously undisclosed material constitutedRosario material and, if it did and that material had been disclosed, there was areasonable possibility of a different verdict.
Malone Jr. and McCarthy, JJ., concur.
Mercure, J.P. (dissenting). As the evidence of the uncharged July 2005 drug sale is notRosario material and, regardless, could not have created a reasonable possibility of adifferent result at trial, we respectfully dissent.
Evidence constituting Rosario material is "[a]ny written or recorded statement. . . made by a person whom the prosecutor intends to call as a witness at trial, andwhich relates to the subject matter of the witness's testimony" (CPL 240.45 [1] [a][emphasis added]; see People v Rosario, 9 NY2d 286, 289 [1961], cert denied368 US 866 [1961]; People v Feerick, 241 AD2d 126, 136 [1998], affd 93 NY2d433 [1999]). There is no dispute that the July 2005 sale was not mentioned at all during trial, andwas only indirectly referenced by one witness, an undercover officer who stated that she knewdefendant from an unspecified "prior situation."[FN*]Accordingly, by definition, the evidence relating to the July 2005 sale is not Rosariomaterial.
Notwithstanding the plain language of CPL 240.45 and the case law requiring a connectionbetween the prior statements of a prosecution witness and his or her direct testimony, themajority nevertheless claims that evidence related to the July 2005 sale could somehowconstitute Rosario material. The cases relied upon by the majority in support of thisproposition are hardly supportive of this claim. For example, the majority points to a case wherethe undisclosed prior statements included recordings of visits to a defendant's office that did notform the basis of any criminal charge against the defendant and were apparently not referencedin any witness's testimony (People v Baghai-Kermani, 84 NY2d 525, 529 [1994]). Anysimilarity between that case and the present one is superficial, however, as the undisclosedrecordings in Baghai-Kermani contained references to a visit that was a subject oftestimony and further contradicted a witness's testimony as to how many times he had visited thedefendant (id. at 529-530, 530 n 1). Likewise, the other cases cited by the majority dealwith situations where the undisclosed evidence related to a witness's testimony in some way(People v Brome, 278 AD2d 745, 747-748 [2000] [evidence showing erasure ofsurveillance recordings related to witnesses' testimony regarding that surveillance]; People vPalma, 224 AD2d 363, 364-365 [1996], lv denied 88 NY2d 883 [1996] [priorstatements of witness summarizing crimes and investigation thereof related to testimonyregarding investigation]). In contrast, no prosecution witness here testified about the July 2005sale, and there is no connection between that sale and such [*5]testimony. As a result, any evidence relating to the July 2005 saleis not Rosario material (seePeople v Hunter, 16 AD3d 187, 188 [2005], lv denied 4 NY3d 887 [2005];People v Ross, 147 AD2d 954, 954-955 [1989], lv denied 73 NY2d 1021[1989]).
Another critical factor overlooked by the majority is that the cases they rely upon werehanded down prior to the enactment of CPL 240.75, which jettisoned the rule requiring per sereversal for a Rosario violation in favor of one where reversal is necessary only if "thereis a reasonable possibility that the non-disclosure materially contributed to the result of the trialor other proceeding" (CPL 240.75; see People v Sorbello, 285 AD2d 88, 90-93 [2001],lv denied 97 NY2d 658 [2001]; People v Felix-Torres, 281 AD2d 649, 650-651[2001]). Defendant, not the People, bore the burden of showing that the violation created such areasonable possibility (see People v Sorbello, 285 AD2d at 93; People vFelix-Torres, 281 AD2d at 651).
Defendant offered no credible suggestion as to how the absent evidence of the prior salecould have created such a "reasonable possibility." We have far more than a naked assurance thatevidence of the prior sale would not assist defendant; indeed, the July 2005 sale is welldocumented in the record by numerous documents obtained by defendant, including a policereport and sworn statement of an investigator who testified at trial. Those documents reveal thatevidence of the earlier sale would damage defendant's agency defense, the sole purpose forwhich the evidence was sought. In fact, the very existence of the prior sale would undermine thatdefense (see People v Lam Lek Chong, 45 NY2d 64, 75 [1978], cert denied 439US 935 [1978]; People v Rodriguez, 193 AD2d 705, 706 [1993], lv denied 82NY2d 725 [1993]; People v Rubens, 190 AD2d 969, 969 [1993]). Nor would an agencydefense be furthered by revelations that defendant gave drugs to an investigator during the priorsale with the expectation of payment, told her when he would have drugs in the future and madearrangements with her for future transactions (see People v Roche, 45 NY2d 78, 85[1978], cert denied 439 US 958 [1978]; People v Lam Lek Chong, 45 NY2d at75; People v Jackson, 11 AD3d928, 929 [2004], lv denied 3 NY3d 757 [2004]). Moreover, defendant admittedlymade the sales in the hope of obtaining employment, a personal benefit arising from the salesthat would serve to defeat an agency defense (see People v Brown, 52 AD3d 204, 205-206 [2008], lvdenied 11 NY3d 786 [2008]).
For all the bluster regarding the undisclosed documents, neither the majority nordefendant—who, as a participant in the July 2005 sale, is in a good position to state whattranspired during it that would have aided him at trial—provide anything beyondspeculation as to how evidence of the prior sale could have assisted defendant's agency defense.Indeed, the majority confesses skepticism as to whether defendant would have been aided byrevelations at trial regarding uncharged drug sales. Nevertheless, the majority remits this matterto County Court for proceedings which are, in our view, unnecessary. As County Court is notobliged to assist defendant in "an unrestrained 'tour of investigation seeking generally usefulinformation' " that lies outside the bounds of the Rosario rule, we would rejectdefendant's Rosario argument and address his remaining claims of error (People vPoole, 48 NY2d 144, 148 [1979], quoting People v Rosario, 9 NY2d at 290).
Spain, J., concurs. Ordered that the decision is withheld, and matter remitted to the CountyCourt of Tompkins County for further proceedings not inconsistent with this Court's decision.
Footnote 1: All of this information wasuncovered by defendant after trial through a Freedom of Information Law request that he hadfiled with the Ithaca Police Department.
Footnote 2: In fact, all that had beenprovided by the People to defendant at trial regarding the July 27, 2005 transaction was a briefnote in a police report that the undercover officer "had already purchased narcotics from[defendant] in the recent past." The affidavit referred to by the dissent describing this transactionin more detail was not provided until defendant had filed his request under the Freedom ofInformation Law with the Ithaca Police Department and was not available to the defense at thetime the undercover officer testified at trial.
Footnote 3: Testimony that indirectlyreferred to this transaction was introduced by the People at trial. The undercover officer testifiedthat the August 10, 2005 sale was arranged as the result of a phone call she made to defendant.Not only had the undercover officer obtained defendant's phone number during this firsttransaction, but she testified at trial that she recognized defendant's voice as the result of a "priorsituation." The only prior contact the undercover officer ever had with defendant occurred duringthe first buy on July 27, 2005.
Footnote 4: A second tape recording wasmade during an investigation of another doctor by this investigator and was found to beRosario material because it contained statements by the investigator about the defendantand his medical office.
Footnote 5: Our decision should not be readas requiring the disclosure of any document that would in some way endanger any person or thepublic and, in such a case, the People retain the right to seek a protective order prohibiting thedisclosure of that material (see CPL 240.50 [1]).
Footnote *: We note that the People onlysought to introduce evidence of the prior drug sale if defendant presented an agency defense andelected to testify, and such evidence would generally be improper on their direct case (seePeople v Ross, 147 AD2d 954, 954 [1989], lv denied 73 NY2d 1021 [1989]).