| People v Lewis |
| 2015 NY Slip Op 01492 [125 AD3d 1109] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vQuentin Lewis, Appellant. |
Andrea G. Hirsch, New York City, for appellant.
Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
McCarthy, J.P. Appeal, by permission, from an order of the County Court of GreeneCounty (Pulver Jr., J.), entered July 16, 2013, which denied defendant's motion pursuantto CPL article 440 to vacate the judgment convicting him of the crime of manslaughter inthe first degree, without a hearing.
Defendant, who was a prison inmate, was charged with murder in the second degreeand manslaughter in the first degree in connection with an altercation that involveddefendant and two other inmates and which resulted in one of them dying from a stabwound.[FN1] At theensuing jury trial, the People called, among other witnesses, inmates Wilfredo Galarzaand Miguel Roman, who were the only witnesses who testified that they saw defendantfighting with the victim. The jury acquitted defendant of murder in the second degree butfound him guilty of manslaughter in the first degree. County Court sentenced him, as asecond violent felony offender, to 25 years in prison. This Court affirmed his convictionon appeal (300 AD2d 827 [2002], lv denied 99 NY2d 630 [2003]). Defendantmoved pursuant to CPL 440.10 to vacate the judgment of conviction, alleging that thePeople committed a Brady violation by failing to disclose that Roman andGalarza received favorable treatment in exchange for their testimony against defendant.County Court denied the motion without a hearing. Defendant, by permission,appeals.
[*2] We reverse, because defendantwas entitled to a hearing on his motion. Due process requires that the People disclose tothe defendant any evidence in their possession that is "material to guilt or punishment"(People v Fuentes, 12 NY3d259, 263 [2009]; see Brady v Maryland, 373 US 83, 87 [1963]; People vSteadman, 82 NY2d 1, 7 [1993]). The People must disclose evidence relating to awitness's credibility, including "the 'existence of an agreement between the prosecutionand a witness, made to induce the testimony of the witness' " (People vNovoa, 70 NY2d 490, 496 [1987], quoting People v Cwikla, 46 NY2d 434,441 [1979]; see People vJohnson, 107 AD3d 1161, 1164-1165 [2013], lv denied 21 NY3d 1075[2013]). "To establish a Brady violation, a defendant must show that (1) theevidence is favorable to the defendant because it is either exculpatory or impeaching innature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arosebecause the suppressed evidence was material" (People v Fuentes, 12 NY3d at263; see People v Serrano,99 AD3d 1105, 1106 [2012], lv denied 20 NY3d 1014 [2013]). When aspecific request has been made for the evidence that was withheld, "the materialityelement is established provided there exists a 'reasonable possibility' that it would havechanged the result of the proceedings" (People v Fuentes, 12 NY3d at 263,quoting People v Vilardi, 76 NY2d 67, 77 [1990]; see People v Bond, 95NY2d 840, 843 [2000]).
At trial, Roman testified that he witnessed defendant and the codefendant in aconfrontation with the victim and that defendant was making thrusting motions towardthe victim. Roman testified that he was transferred to Clinton Correctional Facility afterspeaking to prison officials about defendant's involvement in this fight. Defense counselattempted to elicit that Roman agreed to cooperate with correction officers to obtainfavorable treatment, including a transfer to Clinton Correctional Facility because thatfacility allowed conjugal visits and his current facility did not, but Roman deniedwanting a transfer and that he had been able to see his wife since the transfer.
In his affidavit submitted in support of defendant's CPL 440.10 motion, however,Roman averred that on the night of the fight, he was taken to see "the InvestigatorGeneral." After Roman denied seeing anything, prison staff threatened him to make himcooperate in the investigation. Roman specifically alleged that correction officers hadfound marihuana in his belongings and threatened to charge him with drug possession,send him to solitary confinement and cut off his correspondence privileges with his wife,who was also an inmate at the time. Roman further asserted that he was questioned againmonths later and, when he refused to testify before the grand jury, he was threatened withcharges of perjury as well as drug possession. He then agreed to testify before the grandjury and at trial. Defendant also submitted affidavits from four other inmates who livedin the dorm where the fight occurred, all averring that they were subjected to threats oroffered promises in exchange for information regarding this incident. Allegations thatRoman provided coerced testimony are relevant to his credibility as a witness, and couldhave been used for impeachment purposes (see People v Colon, 13 NY3d 343, 349 [2009]). This meetsthe first element to establish a Brady violation.
As to the second element, the People concede that they did not disclose to defendantprior to trial any threats or promises concerning Roman. The People have a duty to learnof favorable evidence in the possession of law enforcement officials, and suchinformation is imputed to the People for Brady purposes (see Kyles vWhitley, 514 US 419, 437-438 [1995]; People v Santorelli, 95 NY2d 412,421 [2000]; People vSeeber, 94 AD3d 1335, 1338 [2012]). Evidence gathered by prison staff,however, generally is not "under the control or in the possession of the People or itsagents, but was instead in the possession of an administrative agency that was notperforming law enforcement functions" (People v Smith, 89 AD3d 1148, 1150 [2011], lvdenied 19 NY3d 968 [2012]; see People v Kelly, 88 NY2d 248, 252 [1996];[*3]People v Howard, 87 NY2d 940, 941 [1996]).While Roman avers that correction officers threatened him on the day of the fight, healso mentioned that "the Investigator General" was present. It is unclear who thisindividual is, and whether he or she is employed by the prison or an outside policeagency. When Roman discussed being threatened prior to the grand jury presentment, hevaguely identified the sources of those threats as "the authorities." Similarly, two of theother inmates who submitted affidavits regarding threats did not clearly identify thethreateners, referring to them by terms such as "questioner[s]." The other two inmatesstated that they were questioned by outside police or the State Police. In response todefendant's motion, the People did not submit any proof regarding who questionedinmates following this incident. Thus, it is unclear whether Roman was threatened byprison officials whose knowledge would not be imputed to the People, or by lawenforcement officers affiliated with an outside police agency, such that the People wouldbe duty-bound to disclose any evidence within the knowledge of those officers. Due tothis factual question, a hearing is necessary on the second element to establish aBrady violation, whether the People suppressed the evidence (see CPL440.30 [4], [5]).[FN2]
As to the third element of prejudice due to materiality, inasmuch as a specific requestwas made here, defendant only needed to show the existence of a " 'reasonablepossibility' that [the undisclosed evidence] would have changed the result of [his trial]"(People v Fuentes, 12 NY3d at 263). At trial, only two witnesses identifieddefendant as having been involved in the fight that led to the victim's death. Galarzainitially identified defendant, but was then equivocal as to his identification. Oncross-examination, Galarza admitted that his vision was poor and he was not wearing hisglasses at the time of the fight, he had mental health issues and took psychotropic orpsychiatric medications. His testimony was relatively weak. Roman's identification ofdefendant was much stronger, creating a reasonable possibility that the inability toimpeach his testimony with the undisclosed evidence affected the outcome of defendant'strial.
The People argue that any alleged threats are not material because Roman has notrecanted his testimony—meaning that it has not been shown to befalse—and he was already impeached at trial. We are unpersuaded. It is notnecessary for a defendant to prove that a witness's testimony was false to establish aBrady violation; the jury has the obligation to assess credibility, and the Peopleimpede the exercise of that obligation when they fail to disclose evidence that could beused for impeachment purposes (see People v Novoa, 70 NY2d at 497). As forthe impeachment at trial, Roman was questioned about the possible benefit of a transfer,but he denied wanting the transfer or receiving visits from his wife due to the transfer.Defendant questioned Roman regarding his criminal history and that he previouslyinformed defense counsel that he did not see anything on the date in question.Questioning a witness's credibility based on prior convictions or a prior inconsistentstatement is fundamentally different, [*4]however, than"the opportunity to challenge the credibility of the People's key witness as a liar" byeliciting a motive for the witness to fabricate his or her testimony and possiblyincriminate someone falsely (People v Bond, 95 NY2d at 843; compare People v Dawkins, 43AD3d 705, 705-706 [2007], lv denied 10 NY3d 809 [2008]). As defendant'ssworn submissions tend to substantiate, but do not conclusively substantiate, eachelement to establish a Brady violation, a hearing is required (see CPL440.30 [5]; compare CPL 440.30 [3] with [4]).
Egan Jr., Lynch and Clark, JJ., concur. Ordered that the order is reversed, on the law,and matter remitted to the County Court of Greene County for further proceedings notinconsistent with this Court's decision.
Footnote 1:The codefendant inmatepleaded guilty to manslaughter in connection with this incident.
Footnote 2:Defendant argues thatthe People waived the right to a hearing by not presenting evidence, such that his motionshould be granted outright, without a hearing. The People are deemed to have impliedlyconceded the truthfulness of a defendant's factual allegations by failing to dispute them(see People v Wright, 86 NY2d 591, 595-596 [1995]). Although the People'sfailure in that regard would establish defendant's allegations that Roman was threatenedor offered promises in exchange for his testimony, defendant did not conclusivelyestablish other of his factual assertions (i.e., who questioned Roman). Thus, as factualquestions remain, a hearing is necessary despite the People's failure to disputedefendant's factual allegations.