| People v Page |
| 2014 NY Slip Op 01642 [115 AD3d 1067] |
| March 13, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v EricPage, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
McCarthy, J. Appeal, by permission, from an order of the County Court ofSchenectady County (Drago, J.), entered October 2, 2012, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes ofmurder in the second degree, attempted murder in the second degree and assault in thefirst degree, without a hearing.
In December 1994, defendant was convicted of murder in the second degree,attempted murder in the second degree and assault in the first degree and was sentencedto an aggregate prison term of 28
Defendant first argues that the ballistics report constituted Brady material andthat there was a "reasonable probability" that it would have changed the outcome of theproceedings (People vFuentes, 12 NY3d 259, 263 [2009]; see People v Matthews, 101 AD3d 1363, 1367[*2][2012], lv denied 20 NY3d 1101 [2013]; People v Auleta, 82 AD3d1417, 1421 [2011], lv denied 17 NY3d 813 [2011]). Assuming, withoutdeciding, that the report constituted Brady material and that the People wereunder an obligation to disclose it, we nonetheless find defendant's contention withoutmerit. Here, defendant's conviction was premised upon the testimony of MarvinGrimsley, the victim who survived the attack, who testified that he and the other victim,Ralph Vilanueva, had purchased crack cocaine from defendant twice during the day andthat, when defendant returned to collect money and they were unable to pay, defendantfired two shots, one killing Vilanueva and the other wounding Grimsley (225 AD2d at832). The ballistics report proffered by defendant simply stated that the bullets recoveredfrom the two victims lacked sufficient microscopic detail to determine whether they werefired from the same weapon and, therefore, defendant's contention that such evidencecould have been used to challenge the People's theory that one gun fired both bullets didnot raise a reasonable probability that the outcome of his trial would have been different(see People v Matthews, 101 AD3d at 1367; People v Auleta, 82 AD3dat 1421).[FN*]
However, we find that the affidavit of Maurice Miller proffered by defendant wassufficient to warrant a hearing. Miller's affidavit was subscribed to in January 2012 andalleged, among other things, that he had witnessed another drug dealer, AlexanderLlanos, sell crack to Grimsley on the day of the shooting, that defendant was not presentin the area, and that Llanos later confessed to the shooting. First addressing whether theevidence could have been obtained with due diligence prior to trial, a court must keep inmind "the practicalities of the situation" and weigh the "limited resources generallyavailable" to a defendant (People v Hildenbrandt, 125 AD2d at 819, 821 [1986],lv denied 69 NY2d 881 [1987]; see People v Tankleff, 49 AD3d 160, 180 [2007]). Milleraverred that he had not contacted police at the time of the crime because he fearedretaliation. Defendant was 16 years old, incarcerated and had assigned counsel. Underthese circumstances, there is no indication that defendant's failure to discover this witnesswas the result of a lack of due diligence (see People v Hildenbrandt, 125 AD2dat 821-822).
Turning to the question of whether the evidence proffered was merely impeachmentevidence, the confession of Llanos to the crime was material to the ultimate issue ofdefendant's guilt or innocence (see People v Nicholson, 222 AD2d 1055,1056-1057 [1995]; compare People v Richards, 266 AD2d 714, 715 [1999],lv denied 94 NY2d 924 [2000]). Furthermore, a defendant has a fundamentalright to offer into evidence the admission of another to the crime with which he or she ischarged and, therefore, a hearing should have been held to determine the probative valueof Miller's testimony and its probable effect on the verdict (see People v Deacon, 96 AD3d965, 968 [2012], appeal dismissed 20 NY3d 1046 [2013]; People v Gibian, 76 AD3d583, 585 [2010], lv denied 15 NY3d 920 [2010]; see e.g. People vHildenbrandt, 125 AD2d at 822). Accordingly, we find a hearing necessary topromote justice inasmuch as the issues raised are " 'sufficiently unusual and suggestsearching investigation' " (People v Nicholson, 222 AD2d at 1057, quotingPeople v Crimmins, 38 NY2d 407, 416 [1975]; see People v Campbell,81 AD3d [*3]1251, 1252 [2011]).
Lahtinen, J.P., Stein and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, and matter remitted to the County Court of Schenectady County for furtherproceedings not inconsistent with this Court's decision.
Footnote *: Defendant incorrectlyinterprets this report to mean that the bullets must have been fired from differentweapons. A more accurate interpretation is that the groove impressions were similar,such that the bullets may have been fired from the same gun, but this cannot bescientifically and conclusively confirmed.