| People v Wagstaffe |
| 2014 NY Slip Op 06217 [120 AD3d 1361] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Everton Wagstaffe and Reginald Connor,Appellants. |
Beldock Levine & Hoffman, LLP, New York, N.Y. (Myron Beldock and IrvingCohen of counsel), for appellant Everton Wagstaffe.
Davis, Polk & Wardwell, LLP, New York, N.Y. (James W. B. Benkhard, DavidB. Toscano, Jordan Leigh Smith, and Kevin Van Landingham of counsel), for appellantReginald Connor.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andJoyce Slevin of counsel), for respondent.
Beldock Levine & Hoffman, LLP, New York, N.Y. (Myron Beldock and IrvingCohen of counsel), for appellant Everton Wagstaffe.
Davis, Polk & Wardwell, LLP, New York, N.Y. (James W. B. Benkhard, DavidB. Toscano, Jordan Leigh Smith, and Kevin Van Landingham of counsel), for appellantReginald Connor.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andJoyce Slevin of counsel), for respondent.
Appeals by the defendants, by permission, from an order of the Supreme Court,Kings County (Parker, J.), dated October 28, 2011, which, after a hearing, denied theirseparate motions pursuant to CPL 440.10 to vacate judgments of the same court(Goldstein, J.) rendered February 16, 1993, and February 22, 1993 (one as to each ofthem), convicting them of kidnapping in the second degree, upon a jury verdict, andimposing sentences.
Ordered that the order is reversed, on the law, the defendants' separate motionspursuant to CPL 440.10 to vacate the judgments of conviction rendered against each ofthem are granted, the indictments are dismissed, and the matter is remitted to theSupreme Court, Kings County, for further proceedings consistent with CPL 160.50.
Just before 7:00 a.m. on January 1, 1992, the police found the body of a 16-year-oldhomicide victim on a street in a deserted industrial area in the East New York section ofBrooklyn. [*2]The victim was only partially clothed, andhad been stabbed repeatedly, strangled, and beaten. Subsequently, the police arrested thedefendants, following their identification by Brunilda Capella, who was under theinfluence of drugs and alcohol at the time she witnessed the victim being forced into avehicle. The defendants were both convicted by a jury of second degree kidnapping.
On direct appeal, this Court separately affirmed both judgments of conviction(see People v Wagstaff, 219 AD2d 690 [1995]; People v Connor, 219AD2d 664 [1995]). Each defendant moved for leave to appeal to the Court of Appeals,and their respective motions were denied (see People v Wagstaff, 88 NY2d 996[1996]; People v Connor, 88 NY2d 982 [1996]).
Subsequently, the defendants separately moved pursuant to CPL 440.10 to vacatetheir respective judgments of conviction. Among the various grounds raised, theycontended that their convictions were obtained by fraud and misrepresentation on thepart of the police (see CPL 440.10 [1] [b]). Specifically, they contended thatcertain documentary evidence establishes that two police detectives gave false testimonyat the Wade hearing (see United States v Wade, 388 US 218 [1967]) andat trial, resulting in their convictions. The Supreme Court held a fact-finding hearingwith respect to certain issues raised in the defendants' CPL 440.10 motions, but not as towhether the convictions were obtained by fraud and misrepresentation. Following thathearing, the Supreme Court denied the defendants' motions.
On appeal, the defendants continue to advance their arguments pursuant to CPL440.10 (1) (b) and, in addition, contend that the People violated their disclosureobligations pursuant to Brady v Maryland (373 US 83 [1963]) with respect to thedocuments upon which the defendants rely to make the claims of misrepresentation andfraud by the investigating detectives. They contend that, therefore, CPL 440.10 (1) (h)provides an equally viable ground for vacating their judgments of conviction, whichwere "obtained in violation of a right . . . under the constitution of this stateor of the United States." As the People correctly note, this contention is unpreserved forappellate review. However, it is closely tied to their contention concerning the allegedfalsified testimony, and we exercise our interest of justice jurisdiction to reach it(see CPL 470.05 [2]).
At the outset, the Supreme Court improvidently exercised its discretion in denyingthose branches of the defendants' motions which were pursuant to CPL 440.10 (1) (b) byinvoking the permissive ground for denial set forth in CPL 440.10 (3) (a), and findingthat the "defendants could have with due diligence placed on the record beforesentencing facts to provide an adequate basis for appellate review, but unjustifiablyfailed to do so." There is no indication in the record that the subject documents weredisclosed to the defense in time to be used at the Wade hearing; rather, theprosecutor provided documents to the defense on the record at the time of jury selection.Moreover, while it is undisputed that the subject documents were included within thedisclosure made during jury selection, the record reveals that the prosecutor delivered thesubject documents interspersed throughout a voluminous amount of otherdocumentation, without specifically identifying the documents at issue at the time of thedelivery. As a result, the defendants were not afforded an adequate opportunity todevelop a factual record for appellate review on direct appeal, and the Supreme Courtshould have exercised its discretion and reached this issue on the merits (see CPL440.30 [2]).
The People have an obligation to disclose exculpatory evidence, known asBrady material, in their possession which is favorable to the defendant andmaterial to his or her guilt or innocence (see Brady v Maryland, 373 US 83, 87[1963]; People v Fuentes,12 NY3d 259, 263 [2009]; People v Scott, 88 NY2d 888, 890 [1996]). Suchevidence is to be produced regardless of whether a defendant requests the material(see Strickler v Greene, 527 US 263, 280-281 [1999]; People v Garrett, 106 AD3d929 [2013], revd on other grounds 23 NY3d 878 [2014]). The prosecutor'sduty to exchange Brady material extends to the disclosure of evidence that can beused to impeach the credibility of a witness for the People whose testimony may bedeterminative of the defendant's guilt (see Giglio v United States, 405 US 150,154-155 [1972]; People v Baxley, 84 NY2d 208, 213 [1994]). Such material is tobe turned over to the defendant in time for him or her to use it in a meaningful fashionduring cross-examination or as evidence during his or her own case (see e.g. People vCortijo, 70 NY2d 868, 870 [1987]).
[*3] In order to establish a Brady violation, a defendant must prove: (1) theevidence at issue is favorable to him or her; (2) the evidence was suppressed by the State,either willfully or inadvertently; and (3) prejudice ensued because the suppressedevidence was material (see Strickler v Greene, 527 US at 281-282; People v Hayes, 17 NY3d46, 50 [2011]; People v Fuentes, 12 NY3d at 263; People v LaValle, 3 NY3d88, 110 [2004]). As to the element of materiality, where there was only a generalrequest by the defendant at the time of trial for exculpatory material, evidence is materialif there is a reasonable probability that, had the evidence been disclosed to the defense,the result of the proceeding would have been different (see People v Fuentes, 12NY3d at 263; People v Bryce, 88 NY2d 124, 128 [1996]; People vVilardi, 76 NY2d 67, 73-77 [1990]). Here, the manner in which the prosecutionturned over the documents, during the course of jury selection, deprived the defendantsof a meaningful opportunity to employ that evidence during their cross-examination ofthe prosecution's witnesses (compare People v Sanchez, 21 NY3d 216, 225 [2013]; People v Alonso, 91 AD3d663, 665 [2012]).
The documents at issue—a Request for Record Check, dated January 1, 1992,concerning the defendant Reginald Connor, and New York State Police InformationNetwork requests for records pertaining to both defendants—reveal that thedefendants were being investigated by the New York City Police Department prior to thedetectives' interview of Capella, a fact that was contrary to the testimony of one of theinvestigating detectives that the interview with Capella on January 2, 1992, led the policeto the defendants. These documents clearly fell within the ambit of the prosecutor'sBrady obligations because they constituted impeachment evidence (see Peoplev Fuentes, 12 NY3d at 263; see also Giglio v United States, 405 US at154-155). The failure to properly disclose such documents curtailed the defendants'ability to investigate additional avenues of exculpatory or impeaching evidence (seeUnited States v Gil, 297 F3d 93, 104 [2d Cir 2002]).
Further, since the record does not reveal that the defendants made a specific requestfor the subject documents, materiality can only be demonstrated by showing that there isa reasonable probability that those documents, had they been properly identified andexchanged in such a manner so that they could be used in a meaningful fashion duringthe cross-examination of Capella and the detectives, would have changed the outcome ofthe proceedings (see People v Fuentes, 12 NY3d at 263; People v Bryce,88 NY2d at 128). There was a reasonable probability that, had the prosecution identifiedthese documents when delivering them to the defendants, the employment of thesedocuments would have changed the outcome of the defendants' trial, since theprosecution's case rested almost exclusively on the testimony of Capella (see People v Hunter, 11 NY3d1, 6 [2008]; People v Garrett, 106 AD3d at 929). The documents call intoquestion whether Capella provided the detectives with the identities of the defendants orif the detectives, without an evidentiary basis, had identified Connor and Wagstaffe priorto Capella's identification of them, thus bearing negatively upon the credibility of Capellaand the investigating detectives. Given the lack of any other evidence tying thedefendants to the crime, the credibility of Capella and the investigating detectives was ofprimary importance in this case, so that the burying of the subject documents by theprosecution during the exchange of discovery was material (see People v Hunter,11 NY3d at 6; see also Giglio v United States, 405 US at 154-155).
In light of our determination, the defendants' remaining contentions have beenrendered academic.
Under the circumstances of this case, including the passage of time and the death ofthe main witness, Capella, we vacate the judgments of conviction and dismiss theindictments (see CPL 440.10 [4]). Skelos, J.P., Dillon, Dickerson and Austin, JJ.,concur.