| People v Carver |
| 2014 NY Slip Op 00832 [114 AD3d 1199] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vWilliam T. Carver, Jr., Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered April 15, 2009. The judgment convicted defendant, upon a jury verdict, ofassault in the first degree and criminal possession of a weapon in the second degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of assault in the first degree (Penal Law § 120.10 [1]) and two counts ofcriminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Onappeal, defendant contends that the People's delayed disclosure of a 911 recordingconstituted a Brady violation that deprived him of his right to a fair trial. Weagree.
"To establish a Brady violation, a defendant must show that (1) the evidenceis favorable to the defendant because it is either exculpatory or impeaching in nature; (2)the evidence was suppressed by the prosecution; and (3) prejudice arose because thesuppressed evidence was material . . . In New York, where a defendantmakes a specific request for [an item of discovery], the materiality element is establishedprovided there exists a 'reasonable possibility' that it would have changed the result of theproceedings" (People vFuentes, 12 NY3d 259, 263 [2009], rearg denied 13 NY3d 766 [2009]).
Here, the 911 recording is exculpatory because it includes the voice of anunidentified person referring to a white male suspect, and defendant herein is a blackmale. Although defendant received the 911 recording as part of the Rosariomaterial provided to him on the first day of trial, he was not "given a meaningfulopportunity to use the exculpatory evidence" (People v Middlebrooks, 300 AD2d1142, 1143-1144 [2002], lv denied 99 NY2d 630 [2003]; see generallyPeople v Cortijo, 70 NY2d 868, 870 [1987]; People v Gonzalez, 89 AD3d 1443, 1444 [2011], lvdenied 19 NY3d 973 [2012], reconsideration denied 20 NY3d 932 [2012]).The trial was brief, commencing on a Thursday and concluding the following Monday.Defense counsel had no reason to believe that the recording contained exculpatorymaterial because the prosecutor did not inform defense counsel that it did. [*2]Furthermore, defense counsel had difficulty hearing thecontents of the recording. When she eventually discovered that it contained Bradymaterial, she alerted County Court on the final day of trial and requested anadjournment to subpoena witnesses, and the court denied her request. Thus, due to thecircumstances of the recording's disclosure and the court's denial of the request for anadjournment, defense counsel was unable to introduce the recording in evidence and wasotherwise denied a meaningful opportunity to use it, violating defendant's constitutionalright to a fair trial (see generally Cortijo, 70 NY2d at 870).
The 911 recording was material inasmuch as it would have allowed defendant topursue the theory that the shooter was a white male, thereby creating reasonable doubtthat defendant, a black male, was the shooter. Thus, there is "a 'reasonable possibility'that [the 911 recording specifically requested by defendant] would have changed theresult of the proceedings" (Fuentes, 12 NY3d at 263).
In view of our determination, we do not address defendant's remaining contentions.Present—Smith, J.P., Fahey, Lindley, Valentino and Whalen, JJ.