| People v Alonso |
| 2012 NY Slip Op 00220 [91 AD3d 663] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v RobertAlonso, and Emilia Alonso, Respondents. |
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Diane E. Selker, Peekskill, N.Y., for respondents.
Appeal by the People from an order of the Supreme Court, Westchester County (R.Bellantoni, J.), entered October 31, 2008, which granted the defendants' oral application todismiss Westchester County indictment Nos. 07-00645 and 07-01605 with prejudice. By decisionand order of this Court dated February 16, 2010, the appeal was dismissed (see People v Alonso, 70 AD3d957 [2010]). By order of the Court of Appeals dated May 3, 2011, the decision and order ofthis Court was reversed, and the matter was remitted to this Court for consideration of the meritsof the appeal (see People v Alonso,16 NY3d 581 [2011]). Justice Austin has been substituted for the late Justice Fisher(see 22 NYCRR 670.1 [c]).
Ordered that the order is reversed, on the law, the defendants' oral application to dismiss theindictments is denied, the indictments are reinstated, and the matter is remitted to the SupremeCourt, Westchester County, for further proceedings on the indictments.
In this criminal prosecution for charges related to Medicaid fraud, this matter has beenremitted to us from the Court of Appeals for consideration of the merits of the People's appealfrom an order granting the defendants' oral application to dismiss the indictments on the groundthat the People failed to comply with their obligation to disclose exculpatory evidence pursuantto Brady v Maryland (373 US 83 [1963]; see People v Alonso, 16 NY3d 581 [2011]).
"[T]he suppression by the prosecution of evidence favorable to an accused upon requestviolates due process where the evidence is material either to guilt or to punishment, irrespectiveof the good faith or bad faith of the prosecution" (Brady v Maryland, 373 US at 87)."[T]he duty of disclosing exculpatory material extends to disclosure of evidence impeaching thecredibility of a prosecution witness whose testimony may be determinative of guilt or innocence"(People v Frantz, 57 AD3d 692,693 [2008]; see Giglio v United States, 405 US 150, 154-155 [1972]). To establish aBrady violation, "[t]he evidence at issue must be favorable to the accused, either becauseit is exculpatory, or because it is impeaching; that evidence must have been suppressed by theState, either willfully or inadvertently; and prejudice must have ensued" (Strickler vGreene, 527 US 263, 281-282 [1999]; see People v LaValle, 3 NY3d 88, 109-110 [2004]).
Here, the alleged exculpatory materials at issue are the pretrial statements and grand [*2]jury testimony of the witness Dr. Emille Agrait, who was a dentistpracticing in the office of the defendant Dr. Robert Alonso at times relevant hereto. Dr. Agraitgave statements to two investigators, and testified before two grand juries for the respectiveindictments. In her statements and testimony, she identified 14 of her patient charts, stated thatthey contained notations which were not in her own handwriting, and gave her opinion as towhich of the two defendants had made those notations. The statements and testimony containinconsistencies with respect to Dr. Agrait's opinion as to the handwriting on 4 of the 14 charts. Itis undisputed that the People provided the defense with Dr. Agrait's statements to investigatorsprior to the defendants' filing of their pretrial omnibus motion in July 2007. It is furtherundisputed that the People provided the defense with Dr. Agrait's grand jury testimony in May2008, approximately one month prior to the commencement of trial in June 2008, andapproximately four months prior to Dr. Agrait's trial testimony in September 2008. With respectto the disclosure in May 2008, the People provided the pretrial statements and testimony of allwitnesses, including Dr. Agrait, in three-ring binders, organized by witness. The defendants usedDr. Agrait's two statements to investigators in preparing their pretrial omnibus motion, and theyquestioned Dr. Agrait and another witness about those statements during cross-examination attrial. Although the defendants could have questioned Dr. Agrait about her grand jury testimonyduring cross-examination at trial, they interrupted the cross-examination in order to make theiroral application to dismiss when Dr. Agrait testified that she had changed her opinion about thehandwriting on her patient charts and believed she had told the prosecutor about her change inopinion prior to trial. During subsequent colloquy, the prosecutor informed the court that Dr.Agrait did not make the alleged oral statement to him and he learned for the first time during thecross-examination that she had changed her opinion. The court credited the prosecutor'srepresentation, and ruled that the alleged oral statement was not part of the Bradymaterial. However, the court held, in effect, that the time and manner in which Dr. Agrait'spretrial statements to investigators and grand jury testimony were disclosed to the defenseviolated the prosecutor's obligations under Brady.
On the record presented, the People fully complied with their duties under Brady.The People and the defense simultaneously learned of Dr. Agrait's change in opinion as to thehandwriting on her charts during cross-examination at trial; the People cannot be faulted forfailing to disclose information which was not in their possession (see People v Tyson,238 AD2d 529, 529-530 [1997]). Further, the People disclosed the two statements toinvestigators and the grand jury testimony well in advance of trial, affording the defendants anopportunity to use those materials. "[A] defendant's constitutional right to a fair trial is notviolated when, as here, he is given a meaningful opportunity to use the allegedly exculpatorymaterial to cross-examine the People's witnesses or as evidence during his case" (People vCortijo, 70 NY2d 868, 870 [1987]; see People v Belgrave, 51 AD3d 939 [2008]).
The defendants contend, however, that they were not given a meaningful opportunity to usethese materials because the People failed to identify the exculpatory portions within them.Contrary to this contention, the alleged impeaching statements and inconsistencies were notconcealed from the defendants and were readily discernable. The defendants had the twostatements prior to July 2007. Within the People's disclosure in May 2008, the materialspertaining to Dr. Agrait were easily found, not voluminous, and provided well in advance of hertestimony, allowing the defendants ample opportunity to find any inconsistencies they wished touse on cross-examination. The prosecutor did not have a duty to prepare the defendants' case forthem. "It is not the prosecution's duty . . . when preparing its case to affirmativelysearch for evidence to impeach its own witness' testimony" (People v Brown, 56 NY2d242, 247 n [1982]).
Further, the defendants contend that the prosecutor attempted to conceal exculpatoryevidence during the direct examination of Dr. Agrait when, knowing that her handwritingidentifications were unreliable, he did not question her about the alleged forged notations on herpatient charts but asked her instead to offer an opinion as to the handwriting on Medicaid claimforms and other documents prepared by the defendants in the course of their business. While "theprosecutor's duty extends to correcting mistakes or falsehoods by a witness whose testimony onthe subject is inaccurate" (People v Steadman, 82 NY2d 1, 7 [1993]; see People v Jones, 31 AD3d 666,667 [2006]), no such violation is supported by the record here. The few inconsistencies in Dr.Agrait's pretrial statements and grand jury testimony do not support the defendants' contentionthat the prosecutor [*3]had reason to doubt the reliability of Dr.Agrait's handwriting identifications. Moreover, such inconsistencies were related to Dr. Agrait'sattempts to identify the author of forged notations, which were written on her charts without herauthority with the intent to conceal the identity of the author, and thus, such inconsistencies donot detract from her reliability in identifying handwriting on Medicaid forms which wereprepared by the defendants in the course of their business.
Accordingly, the Supreme Court erred in determining that the People violated their duty todisclose exculpatory evidence and erred in dismissing the indictments. Contrary to thedefendants' contention, retrial is not barred by principles of double jeopardy simply because thedefendants obtained a dismissal "with prejudice." The Supreme Court's erroneous dismissalbased upon an alleged Brady violation did not constitute an adjudication on the factsgoing to guilt or innocence (see People v Schaum, 98 NY2d 667, 668 [2002]; Peoplev Key, 45 NY2d 111, 117 [1978]; CPL 40.30 [3]), nor did the prosecutor engage in anymisconduct intended to provoke a mistrial (cf. Matter of Davis v Brown, 87 NY2d 626,630-631 [1996]). Therefore, we remit this matter to the Supreme Court, Westchester County, forfurther proceedings on the indictments. Angiolillo, J.P., Belen, Lott and Austin, JJ., concur.