| People v Garrett |
| 2013 NY Slip Op 03498 [106 AD3d 929] |
| May 15, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Mark Garrett, Appellant. |
—[*1]
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), forrespondent.
Appeal by the defendant, by permission, from an order of the County Court, SuffolkCounty (Hudson, J.), dated March 31, 2010, which denied, without a hearing, his motionpursuant to CPL 440.10 to vacate a judgment of the Supreme Court, Suffolk County(Copertino, J.), rendered June 13, 2000, convicting him of murder in the second degree(two counts), upon a jury verdict, and imposing sentence.
Ordered that the order is reversed, on the law, and the matter is remitted to theCounty Court, Suffolk County, for a hearing in accordance herewith and a newdetermination of the defendant's motion thereafter.
At the defendant's trial for murder, the evidence against him consisted primarily ofhis confession to police. At a suppression hearing held in November 1999, before histrial, he contested, inter alia, whether his confession was voluntarily given. He took thestand at the hearing and testified that he signed the confession only after the detectivesconducting the interrogation handcuffed him to a chair and, among other things, slappedhim, hit him, and shocked him twice in the back with a stun gun or taser. He alsopresented the testimony of a nurse practitioner, who examined him at the Suffolk Countyjail and testified that, approximately one week after the interrogation, the defendant hadtwo "healing round excoriations" on his back, but she could not determine whether theywere caused by a stun gun. The suppression court credited the testimony of the People'switnesses, including Detective Vincent O'Leary, that the defendant was not physicallyabused during the interrogation, and denied the defendant's suppression motion. At trial,defense counsel cross-examined O'Leary as to whether he had ever been involved in acase with a "false confession." The trial court sustained the prosecutor's objection to thisline of inquiry. The defendant was convicted of depraved indifference murder and felonymurder, and was sentenced on June 13, 2000.
The defendant moved pursuant to CPL 440.10 to vacate his judgment of convictionon the ground that the prosecution failed to fulfill its obligations pursuant to Brady vMaryland (373 US 83, 87 [1963]). Specifically, he contended that the People failedto disclose to him that a civil action had been brought against O'Leary and SuffolkCounty in the United States District Court for the Eastern District of New York(hereinafter EDNY) alleging that O'Leary procured a false confession to an arson byrepeatedly striking the handcuffed plaintiff in the head with a telephone book until [*2]he confessed. According to an EDNY docket printoutsubmitted by the defendant in support of the motion, the civil complaint was filed onJune 1, 1998, and was answered by O'Leary and Suffolk County on June 18, 1998. Theattorney of record for O'Leary and Suffolk County in that action was the Suffolk CountyAttorney. The civil case against O'Leary was settled in March 2001, after the defendant'strial and sentencing for murder had been concluded.
In opposition to the defendant's motion for post-conviction relief, the Peoplesubmitted, inter alia, an attorney's affirmation, based on a review of files in the SuffolkCounty District Attorney's office, claiming that the District Attorney did not haveknowledge of the civil action against O'Leary until January 2001, a date after thedefendant's trial had concluded. The basis for this claim was the same EDNY docketprintout submitted by the defendant in support of his motion, indicating that on January18, 2001, the EDNY directed the District Attorney to unseal some unspecified files andmake them available to the plaintiff in that action.
In an order dated March 31, 2010, the County Court, without conducting a hearing,denied the defendant's motion to vacate his judgment of conviction. A Justice of thisCourt granted the defendant leave to appeal, and we now reverse the order and remit thematter for a hearing.
A defendant is entitled, under the state and federal constitutions, "to discoverfavorable evidence in the People's possession material to guilt or punishment" (People v Fuentes, 12 NY3d259, 263 [2009], citing Brady v Maryland, 373 US at 87-88, and Peoplev Bryce, 88 NY2d 124, 128-129 [1996]). Indeed, the law requires that Bradymaterial be produced whether or not the defendant requests any such evidence(see Strickler v Greene, 527 US 263, 280-281 [1999]). To establish a Bradyviolation, the "evidence at issue must be favorable to the accused, either because it isexculpatory, or because it is impeaching; that evidence must have been suppressed by theState, either willfully or inadvertently; and prejudice must have ensued" because theevidence was material (Strickler v Greene, 527 US at 281-282; see People v LaValle, 3 NY3d88, 109-110 [2004]; People v Fuentes, 12 NY3d at 263).
Here, the allegedly suppressed evidence clearly fell within the ambit of theprosecutor's Brady obligation because it constituted impeachment evidence(see People v Fuentes, 12 NY3d at 263; see also Giglio v United States,405 US 150 [1972]). Moreover, the People's failure to disclose the existence of the civilaction may have denied the defendant the opportunity to conduct an investigation leadingto additional exculpatory or impeaching evidence (see United States v Gil, 297F3d 93, 104 [2002], citing United States v Gleason, 265 F Supp 880, 886[1967]), for instance, providing a basis for the disclosure of police personnel recordsotherwise unavailable (see People v Gissendanner, 48 NY2d 543, 549 [1979];People v Puglisi, 44 NY2d 748, 750 [1978]; People v Vasquez, 49 AD2d590 [1975]).
"In New York, where a defendant makes a specific request for a document, themateriality element is established provided there exists a 'reasonable possibility' that itwould have changed the result of the proceedings" (People v Fuentes, 12 NY3dat 263). "Absent a specific request by defendant for the document, materiality can only bedemonstrated by a showing that there is a 'reasonable probability' that it would havechanged the outcome of the proceedings" (id.). Here, the record does notdemonstrate that the defendant made a specific request for the allegedly suppressedinformation. Nevertheless, we find that there was a "reasonable probability" thatdisclosure of the lawsuit would have changed the outcome of the defendant's trial. Theprimary evidence at trial establishing the defendant's identity as the murderer was hisconfession. The other evidence tying him to the crime was weak, consisting of testimonythat he was seen with the victim shortly before she disappeared. Since the credibility ofthe detectives who obtained the defendant's confession was of central importance in thecase, the nondisclosure was material (see People v Hunter, 11 NY3d 1 [2008]; see also Gigliov United States, 405 US at 154-155; Milke v Ryan, 711 F3d 998 [2013]).
Accordingly, a hearing is necessary to determine whether the District Attorney'soffice had sufficient knowledge of the suit against O'Leary so as to trigger its obligationsunder Brady. Evidence subject to disclosure under Brady includesevidence "known only to police investigators and not to the prosecutor" (Kyles vWhitley, 514 US 419, 438 [1995]; see Strickler v Greene, [*3]527 US at 280-281), and, therefore, "the individualprosecutor has a duty to learn of any favorable evidence known to the others acting onthe government's behalf in th[is] case, including the police" (Kyles v Whitley,514 US at 437). This rule is based upon the principle that "[t]he government cannot withits right hand say it has nothing while its left hand holds what is of value" (UnitedStates v Wood, 57 F3d 733, 737 [1995]). Here, the attorney's affirmation submittedin opposition to the defendant's motion, which was based only on a review of files, isinsufficient to establish that no one to whom the obligation under Bradyextended, other than perhaps O'Leary himself (cf. People v Vasquez, 214AD2d 93 [1995]), had knowledge of the civil action at any time during which theprosecution's Brady obligation was ongoing. Accordingly, we reverse and remitthe matter to the County Court, Suffolk County, for a hearing on this issue and a newdetermination of the defendant's motion thereafter (see People v Rahman, 231AD2d 745, 746 [1996]). Mastro, J.P., Angiolillo, Chambers and Cohen, JJ., concur.