| People v Smith |
| 2011 NY Slip Op 04772 [85 AD3d 1297] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark E.Smith, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Kavanagh, J. Appeal, by permission, from an order of the County Court of Franklin County(Lawliss, J.), entered June 19, 2007, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment of conviction.
In September 2002, defendant was convicted following a jury trial of the crimes of rape inthe first degree, sodomy in the first degree, burglary in the first degree, criminal contempt in thefirst degree, aggravated criminal contempt, assault in the second degree and menacing in thesecond degree in relation to an incident that occurred on October 23, 2001. After beingsentenced, an appeal was taken and this Court affirmed his convictions (People v Smith, 9 AD3d 745[2004], lv denied 3 NY3d 742 [2004]).
In July 2006, defendant moved pursuant to CPL 440.10 to vacate the judgment of convictionalleging, among other things, that the District Attorney's office, during its prosecution, violatedits obligations under Brady v Maryland (373 US 83 [1963]). After issuing an order inMay 2007 partially denying the motion, County Court held an evidentiary hearing on theremaining issues and subsequently denied defendant's motion in its entirety. Having been grantedpermission from this Court, defendant now appeals and we affirm.
Specifically, defendant claims that he was denied a fair trial when the Assistant District [*2]Attorney (hereinafter the ADA) charged with his prosecution failedto disclose that a key prosecution witness had been offered a favorable plea to an unrelatedcharge prior to testifying at defendant's trial. While " 'an agreement between the prosecution anda witness, made to induce the testimony of the witness, is evidence which must be disclosedunder Brady principles' " (People v Novoa, 70 NY2d 490, 496 [1987], quotingPeople v Cwikla, 46 NY2d 434, 441 [1979]; see People v Griffin, 48 AD3d 894, 896 [2008], lv denied10 NY3d 959 [2008]), here, there is no evidence that the plea that was offered to the witness wasin any way related to his appearance at defendant's trial.
When defendant's trial began, the witness was facing prosecution for driving whileintoxicated (hereinafter DWI) as a felony, and that charge was being prosecuted by the FranklinCounty District Attorney's office in a town court. On the day prior to the witness appearing andtestifying at defendant's trial, the District Attorney sent a letter to the town court where the DWIcharge was pending, authorizing a reduced plea to a misdemeanor in full satisfaction of allcharges pending against the witness and recommending that a sentence be imposed that includeda fine and three years of probation. The ADA charged with defendant's prosecution deniedknowing of the proposed disposition or of the District Attorney's letter when the witness testifiedat defendant's trial. At the hearing held after defendant's conviction, both the District Attorneyand the ADA submitted affirmations indicating that the witness's DWI charge was handledpursuant to established procedures then in effect in the District Attorney's office, and denied thatthe reduced plea was offered in exchange for the witness's testimony at defendant's trial. Thewitness also testified at the hearing that he had no knowledge of any plea offer being made inregard to his DWI charge when he testified at defendant's trial, and claimed not to have had anydiscussion regarding a proposed plea agreement with any member of the District Attorney's staff.While disclosure of this plea offer should have been made, we agree with County Court that noevidence has been presented establishing that a relationship existed between the proposed pleaand the witness's appearance at trial. Absent some evidence establishing that the ADA knew ofthe proposed plea when the witness testified and deliberately failed to disclose it, or that aconnection, in fact, existed between the proposed plea and the witness's appearance at defendant'strial, a Brady violation was not committed simply because the prosecution did not informdefendant of the terms of this plea.
Defendant also argues that the People violated its obligation under Brady by notinsuring that he was provided with a complete copy of the victim's employment records on filewith the Franklin County Sheriff's Department prior to her testifying at trial. During the trial,defendant subpoenaed these records from the Sheriff's Department, which were subsequentlydelivered to County Court. The court performed an in camera review of the documents that hadbeen produced and directed that some of the material be made available to defendant for his useduring the trial. Thereafter, it was determined that the entire file had not been delivered to thecourt as required by the subpoena. County Court examined the documents that had not beenpreviously disclosed and correctly concluded that since the Sheriff's Department was not theinvestigating agency, and none of its personnel were involved in the investigation of defendant,the records were not under the People's control when the entire file was not initially produced (see People v Tucker, 40 AD3d1213, 1216 [2007], lv denied 9 NY3d 882 [2007]). Moreover, the records inquestion involved collateral issues raised at trial and focused on information that, in largemeasure, had been previously disclosed in other documents given to defendant (see generallyPeople v Santorelli, 95 NY2d 412, 421 [2000]; People v Wright, 86 NY2d 591, 598[1995]). As a result, defendant has not demonstrated that he has been prejudiced by the failure ofthe Sheriff's Department to produce the entire file and, more importantly, that there was a [*3]reasonable possibility that this jury would have arrived at a differentverdict had he been given access to all of these documents at trial (see People v Fuentes, 12 NY3d259, 263 [2009]; People vAuleta, 82 AD3d 1417, 1420-1421 [2011]; People v Phillips, 55 AD3d 1145, 1149 [2008], lv denied11 NY3d 899 [2008]; People vCrandall, 38 AD3d 996, 997 [2007], lv denied 9 NY3d 842 [2007]).
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed.