| People v Johnson |
| 2016 NY Slip Op 03896 [139 AD3d 967] |
| May 18, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Johnson, Appellant. |
Lynn W. L. Fahey, New York, NY (De Nice Powell of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), forrespondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County(Lasak, J.), rendered October 12, 2011, convicting him of attempted murder in thesecond degree, robbery in the first degree (two counts), assault in the first degree,criminal possession of a forged instrument in the first degree (three counts), criminalpossession of a forged instrument in the second degree (two counts), robbery in thesecond degree, and criminal possession of stolen property in the fifth degree, underindictment No. 2352/09, upon a jury verdict, and imposing sentence, and (2) a judgmentof the same court, also rendered October 12, 2011, as amended October 17, 2011,convicting him of unauthorized use of a vehicle in the third degree under indictment No.1328/11, upon a jury verdict, and imposing sentence. The appeals bring up for review thedenial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motionwhich was to suppress his statements to law enforcement officials.
Ordered that the judgments are affirmed.
At about 10:00 p.m. on May 11, 2009, a 66-year-old chauffeur was robbed atgunpoint, and then shot, in front of his house in Queens. The victim had just finishedwork and parked his black BMW automobile on the street when a masked manapproached, threatened him with a gun, and grabbed the car's computerized key fob fromthe victim's hand. The perpetrator shot the victim in the chest and the abdomen fromabout an arm's length away, which ultimately led to the victim becoming completelydisabled. Notwithstanding that he shot the victim twice in the torso, the perpetratorcontinued to fire approximately six or seven more shots before driving away in thevictim's BMW. Several people witnessed the carjacking incident.
Three days later, the police received information that the defendant may have beenthe perpetrator and ascertained his whereabouts. Detectives from the New York CityPolice Department (hereinafter NYPD) followed the defendant and observed him commitseveral traffic infractions while driving a GMC Arcadia, and approached him when hestopped at a gas station. Upon inquiry, the defendant stated that the vehicle was a rental,but his name was not on the rental agreement and he did not have a valid driver's license.The detectives arrested the defendant and [*2]recovered aLouisiana driver's license, a John F. Kennedy International Airport (hereinafter JFK)identification (hereinafter ID) card, a New York State nondriver ID card, approximately$2,000 in United States currency, and two BMW key fobs. The defendant gave his nameas "Michael Johnson," which did not match the name on the Louisiana driver's licenseand the JFK ID card. Those two cards bore the defendant's photo, but listed the name"Anis Saleh."
After the defendant was transported to the precinct station house, where he wasplaced—uncuffed—in an interview room, the NYPD learned that the GMCArcadia he was driving had been stolen and the "VIN plate" had been "re-tagged." Theyalso learned that many of the U.S. dollar bills recovered from the defendant bore thesame serial number. In addition, they discovered that one of the key fobs recovered fromthe defendant belonged to the BMW that was stolen from the victim in Queens, and theother fob belonged to a vehicle reported stolen in Suffolk County. In furtherance of theever-expanding investigation of the defendant, he was interviewed by three other lawenforcement agencies. Members of the Suffolk County Police Department interviewedthe defendant about the other stolen vehicle. The United States Secret Serviceinterviewed him about the suspected counterfeit currency that was in his possession, andconcluded that the currency was counterfeit. The Port Authority Police Departmentinterviewed him concerning the JFK ID card, and concluded that the JFK ID card wasnot valid.
During that same period of time, the lead NYPD detective on the case traveled to thehospital where the victim was recovering from his gunshot wounds, and showed him aphoto array which included a photo of the defendant. The victim identified the defendantas the man who shot him and stole his BMW. The detective returned to the station houseand obtained statements from the defendant that he was involved in robbing the victim,but the defendant claimed that he was not the shooter. After the defendant's arraignment,the victim identified him at a lineup.
Following a jury trial, the defendant was convicted of numerous crimes, includingattempted murder in the second degree, robbery in the first degree (two counts), andcriminal possession of a forged instrument in the second degree (two counts). Thedefendant appeals.
I. Voluntariness of the Defendant'sStatements
The defendant contends that the Supreme Court should have suppressed hisstatements to police on the ground that they were involuntarily given. At a hearing tosuppress statements made to law enforcement officials, the People have the burden ofdemonstrating, beyond a reasonable doubt, that the defendant's statements were voluntary(see People v Anderson, 42 NY2d 35, 38 [1977]; People v Huntley, 15NY2d 72 [1965]; People vLoucks, 125 AD3d 890 [2015]) and that the defendant knowingly, intelligently,and voluntarily waived his or her Miranda rights (see Miranda v Arizona,384 US 436, 444 [1966]) prior to making the statements (see People v Williams,62 NY2d 285, 288-289 [1984]). If the People meet their burden, the defendant then bearsthe burden of persuasion (seePeople v Santos, 112 AD3d 757, 758 [2013]; People v Aveni, 100 AD3d228, 237 [2012]).
Proof of voluntariness compatible with due process depends upon the particularcircumstances—" 'the totality' "—of each case (People v Guilford, 21 NY3d205, 208 [2013], quoting People v Anderson, 42 NY2d at 38; see People v Dunbar, 104AD3d 198, 204-205 [2013], affd 24 NY3d 304 [2014]). A court must"review all of the surrounding circumstances to see whether the defendant's will has beenoverborne" (People v Mateo, 2 NY3d 383, 413 [2004]). Moreover, the court'scredibility determinations following a suppression hearing "are entitled to greatdeference on appeal and will not be disturbed unless clearly unsupported by the record"(People v Baliukonis, 35AD3d 626, 627 [2006]; see People v Mateo, 2 NY3d at 413; People v Oliver, 87 AD3d1035, 1036 [2011]).
Here, there is no dispute that the defendant was advised of his Mirandarights, acknowledged those rights in writing, and then agreed to provide a statement.Further, it is undisputed that the defendant did not request an attorney. In his statement,he admitted that he was involved in the robbery, explaining that he was only a driver andthat another man, known as "G," crafted the plan and shot the victim.
Notwithstanding the valid waiver of his Miranda rights, the defendant arguesthat the [*3]Supreme Court should have suppressed hisstatement because there was up to a 33-hour delay between his arrest and hisarraignment. The defendant also argues that the People failed to affirmatively prove thathe was given food and drink, access to a restroom, or an opportunity to rest during thattime. We note, however, that the defendant did not testify that he was denied any of thesenecessities, and his counsel did not offer any other proof of such deprivation.
While an undue delay in arraignment is properly considered when assessing thevoluntariness of a defendant's confession, a delay in arraignment alone does not warrantsuppression, as it is but one factor in assessing voluntariness (see People vRamos, 99 NY2d 27, 34-35 [2002]; People v DeCampoamor, 91 AD3d 669, 670-671 [2012]).Recently, the Court of Appeals clarified that "the overriding concern is not with themere fact that a delay has transpired, but rather with the effect of an unnecessary timelag between arrest and arraignment on a defendant's ability to decide whether to speakand how to respond to questioning" (People v Jin Cheng Lin, 26 NY3d 701, 720 [2016][emphasis added]). In Jin Cheng Lin, the Court of Appeals unanimously affirmeda 3-1 decision of this Court (105 AD3d 761, 761-762 [2013, Hall, J., dissenting]), inwhich the majority concluded, among other things, that a 28-hour delay in arraignmentdid not demonstrate that the defendant's statements were involuntary where the delay wasattributable to a thorough police investigation and was not part of a "strategicallydesigned plan to permit the defendant to be questioned outside the presence of counsel"(People v Jin Cheng Lin, 105 AD3d at 761-762).
In Jin Cheng Lin, the Court of Appeals reiterated the maxim that, although anunwarranted prearraignment delay is a suspect circumstance, " 'except in cases ofinvoluntariness, a delay in arraignment, even if prompted by a desire for further policequestioning, does not warrant suppression' " (People v Jin Cheng Lin, 26NY3d at 720, quoting People v Ramos, 99 NY2d at 35, citing People vDairsaw, 46 NY2d 739, 740 [1978]; see People v Holland, 48 NY2d 861,862-863 [1979]), and emphasized that "a court must give careful consideration to a delaythat impacts a defendant's resistance by extending exposure to the pressures ofinterrogation to the point where a defendant's will bends to the desires of theinterrogators, or during which a defendant is led to believe that the only way to endinterrogation is by bargaining away legal rights" (People v Jin Cheng Lin, 26NY3d at 720).
In the instant case, the testimony at the suppression hearing demonstrated thatapproximately 29-33 hours passed between the defendant's arrest and his arraignmentand that he provided statements after being in custody for approximately 25-28 hours.Our dissenting colleague ascribes significance to the length of the delay. However, thiswas not a typical armed robbery case, and we believe that the delay in arraignment wassatisfactorily explained. The NYPD coordinated with three other law enforcementagencies to investigate not only the attempted murder and two robbery charges, but alsothe extent to which the defendant used false identities and counterfeit money in variousjurisdictions, before presenting these matters at arraignment, where a judge would beconsidering the likelihood that the defendant would return to court before setting bail.Notably, prior to obtaining a statement from the defendant, the lead detective traveled tothe hospital where the victim was recovering, conducted a photo array identificationprocedure when the victim became available, and then traveled back to the station house.Under these circumstances, we conclude that the delay in arraigning the defendant wasattributable to a thorough and necessary police investigation. Thus, his "detention [wasnot] prolonged beyond a time reasonably necessary to accomplish the tasks required tobring [him] to arraignment" (People ex rel. Maxian v Brown, 77 NY2d 422, 427[1991]). Further, the record does not otherwise demonstrate that the police unnecessarilydelayed the arraignment in order to obtain an involuntary confession (see People v Guerrier, 129AD3d 863 [2015]; People vBryan, 43 AD3d 447, 448 [2007]; People v Williams, 297 AD2d 325,325-326 [2002]; People v Jackson, 292 AD2d 466 [2002]; see generallyPeople v Mateo, 2 NY3d at 413; People v Ramos, 99 NY2d at 34; cf.People v Jin Cheng Lin, 26 NY3d at 719).
As for our dissenting colleague's concern about the People's proof regarding whetherthe defendant was provided with basic necessities of life while at the station house, weshare her concern that, although the lead detective periodically checked on the defendantwhile he was in the interview room, the detective admittedly failed to document thedefendant's status during these checks. We agree that the People would have had strongerevidence if they had produced affirmative documentation at the suppression hearing thatthe defendant ate food, drank water, and had access [*4]to the bathroom while he was at the precinct. However, thelack of affirmative proof on these points does not demonstrate that the defendant'spartially self-serving statement was involuntarily given. Additionally, the evidencepresented at trial did not establish that the defendant's statements were involuntary(see CPL 60.45, 710.70 [3]; People v Williams, 297 AD2d at 326; cf.People v Anderson, 42 NY2d at 39-41).
Viewing this record as a whole, we are not convinced that this case shares thecharacteristics common to those cases in which "a coercive environment impacted on thevoluntariness of a defendant's statements" (People v Jin Cheng Lin, 26 NY3d at724). As the Court of Appeals has observed, those cases "typically involved" not only"deprivation of food, water, and sleep during the course of a prolonged interrogation,"but also defendants who were "confined and isolated from all but lawenforcement personnel," led to believe that they had to "bargain for their right tocounsel," and "demonstrate[d] emotional and physical breakdowns" as a result of anoverly coercive environment (id.). In Guilford (21 NY3d 205), one of thecases relied upon by our dissenting colleague, the defendant was detained for almost 50hours and under constant observation, often in a 10 foot by 10 foot windowless room.The officers themselves said that the defendant in Guilford appeared defeated onthe second day of interrogation and that he had "given up" (id. at 210). Moreover,the defendant confessed in exchange for a lawyer, who finally met with him after threedays, and the lawyer described the defendant as emotional and distraught (seeid.). The facts in the instant case do not rise to the level of those found inGuilford. To the contrary, this record demonstrates that the defendant did notprovide his self-serving statements due to any coercion by the police, but rather, heprovided the statement once he was faced with evidence of his guilt (see People v JinCheng Lin, 26 NY3d at 725); that is, once he was faced with the victim'sidentification from the photo array.
Accordingly, contrary to the view of our dissenting colleague, we conclude that theSupreme Court properly denied that branch of the defendant's omnibus motion whichwas to suppress his statements to law enforcement officials.
In any event, even if the Supreme Court erred in declining to suppress thedefendant's statements to police, we find that any such error was harmless because theevidence of his guilt, without reference to his statements, was overwhelming and therewas no reasonable possibility that the error contributed to the convictions (see Peoplev Crimmins, 36 NY2d 230, 237 [1975]; People v Loucks, 125 AD3d 890, 891[2015]).
II. Missing Witness Charge
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in denying his request for a missing witness charge as to the victim's son, whowitnessed part of the robbery. Where a party fails to produce at trial "a witness whopresumably has evidence that would elucidate the transactions," the opposing party mayrequest that the court "instruct the jury that an unfavorable inference may be drawn fromthe failure of the party to call such witness" (People v Gonzalez, 68 NY2d 424,427 [1986] [internal quotation marks omitted]; see People v Hall, 18 NY3d 122, 131 [2011]). "[T]he partyseeking the missing witness charge must sustain an initial burden of showing that theopposing party has failed to call a witness who could be expected to have knowledgeregarding a material issue in the case and to provide testimony favorable to the opposingparty" (People v Macana, 84 NY2d 173, 177 [1994]; see People v Hall,18 NY3d at 131; People vEdwards, 14 NY3d 733, 735 [2010]; People v Gonzalez, 68 NY2d at427). If the party seeking the charge makes this showing, the burden then shifts to theopposing party to show that "the witness is not knowledgeable about the issue, that theissue is not material or relevant, that although the issue is material or relevant, thetestimony would be cumulative to other evidence, that the witness is not available, or thatthe witness is not under the party's control such that he would not be expected to testifyin his or her favor" (People v Gonzalez, 68 NY2d at 428 [internal quotationmarks omitted]; see People v Macana, 84 NY2d at 177; People v Smith, 71 AD3d1174, 1175 [2010]).
Here, the defendant made a prima facie showing that the victim's son could beexpected to have knowledge about a material issue and to testify favorably to the People(see People v Smith, 71 AD3d at 1175). However, the People countered bydemonstrating that the anticipated [*5]testimony wouldbe immaterial. The defendant argues that identification was an important issue in thiscase and, at some point, the victim's son estimated that the perpetrator was approximatelyfive inches taller than other witnesses had estimated. However, this record demonstratesthat identity was not seriously contested in this case. The victim, who interactedwith the perpetrator for several minutes before he was shot, offered a detaileddescription. The victim was able to describe the perpetrator's eyes, nose, skin color, andbuild, and he was able to compare the perpetrator's height to his own while standing anarm's length away from him. Moreover, the victim positively identified the defendant in aphoto array and an in-person lineup. We note that multiple eyewitnesses testified that thescene of the robbery was illuminated by a streetlight.
In addition to the powerful identification evidence offered by the victim, the victim'swife witnessed the shooting and offered a description of the perpetrator's height andbuild that was consistent with the description provided by her husband. Similarly, aneighbor who witnessed the shooting from three car lengths away testified as to a similardescription of the perpetrator's height and build. In addition to this eyewitness testimonyand the defendant's statement to police, physical evidence connected him to the robberyand shooting. Among other things, the defendant was arrested while in possession of thekey fob to the victim's BMW. In light of the extensive and well-corroboratedidentification evidence in this case, the testimony of the victim's son as to the narrowissue of the defendant's height would have been immaterial. Accordingly, contrary to theview of our dissenting colleague, we find that the Supreme Court providently exercisedits discretion in denying the defendant's request for a missing witness charge (see People v Edwards, 14NY3d 733, 735 [2010]; People v Morris, 159 AD2d 934 [1990]; cf. People v Williams, 10AD3d 213, 217 [2004], affd 5 NY3d 732 [2005]).
III. PriorBad Acts
The defendant also argues that the Supreme Court erred in denying his motion for amistrial, made on the ground that certain trial testimony from witness Carlos Nicholls,who helped the defendant dispose of the gun used in the robbery, suggested that thedefendant was involved in uncharged crimes.
"Evidence of uncharged crimes is inadmissible where its only purpose is to show badcharacter or propensity towards crime" (People v Arafet, 13 NY3d 460, 464-465 [2009]; seePeople v Molineux, 168 NY 264 [1901]). Here, the People do not dispute thatNicholls (hereinafter the cooperating witness) improperly provided certain testimonysuggesting that the defendant was involved in the commission of various unchargedcrimes. However, the People argue that the Supreme Court appropriately struck theproblematic testimony, thus ameliorating any prejudice to the defendant, and properlydenied his motion for a mistrial.
In considering a motion for a mistrial, a court " 'must always temper thedecision whether or not to abort the trial by considering the importance to the defendantof being able, once and for all, to conclude his confrontation with society through theverdict of a tribunal he might believe to be favorably disposed to his fate' "(Arizona v Washington, 434 US 497, 514 [1978], quoting United States vJorn, 400 US 470, 486 [1971]). In balancing these considerations, a court shouldconsider "the availability of less drastic means of alleviating whatever prejudice mayhave resulted" from the error (People v Young, 48 NY2d 995, 996 [1980]). Thedecision whether to grant a mistrial lies within the sound discretion of the trial court,which is in the best position to determine whether a mistrial is necessary to protect thedefendant's right to a fair trial (see People v Ortiz, 54 NY2d 288, 292 [1981]; People v Reaves, 112 AD3d746, 747 [2013]). Thus, the trial court's "evaluation of the likelihood that theimpartiality of one or more jurors may have been affected" will be accorded "the highestdegree of respect" (Arizona v Washington, 434 US at 511; see Matter ofEnright v Siedlecki, 59 NY2d 195, 200-201 [1983]; People v Michael, 48NY2d 1, 9-10 [1979]; Matter of Romero v Justices of Supreme Ct., QueensCounty, 237 AD2d 292, 293 [1997]).
Contrary to the view of our dissenting colleague, we find that any prejudice to thedefendant was ameliorated when the Supreme Court sustained his objection to theimproper testimony by the cooperating witness, struck that portion of his testimony, andprovided a curative [*6]instruction, which the jury ispresumed to have followed (seePeople v Dubois, 116 AD3d 878 [2014]; People v Miller, 78 AD3d 733, 734 [2010]). Accordingly,the court providently exercised its discretion in denying the defendant's motion for amistrial.
IV. Late Disclosure of Evidence Related to the CooperatingWitness
Further, we do not believe that the defendant was deprived of a fair trial merelybecause the People temporarily withheld information regarding the cooperating witnesspursuant to an ex parte protective order issued by the court (see People v Rivera,295 AD2d 455, 455-456 [2002]).
During the pretrial proceedings, the People moved for a protective order with respectto the discovery of certain information. In considering this application, the SupremeCourt closed the courtroom and heard testimony from a witness. After expressing itsgeneral reservations about the issuance of protective orders, the court granted thePeople's motion and sealed the record, concluding that it was "completely warrantedunder the facts and circumstances" of the case. Prior to jury selection, the People movedex parte pursuant to CPL 240.50 for a new protective order, or to extend the priorprotective order, in order to delay the disclosure of the identity of the cooperating witnessfor his protection.
However, at the conclusion of jury selection, the People provided defense counselwith evidentiary materials regarding the cooperating witness, including a seven-pagecooperation agreement, a two-page proffer agreement, seven pages of interview notes,and a list of prior convictions. Defense counsel made several motions for a mistrial onthe ground that she was taken by surprise because she did not learn the identity of thecooperating witness until after jury selection and she was not provided with relatedmaterials in a timely fashion. The Supreme Court denied each of the motions.
Notwithstanding that the People withheld the identity of the cooperating witness, thePeople turned over various materials related to this witness as they became available.Furthermore, the record reveals that defense counsel was able to effectively use thismaterial insofar as she vigorously cross-examined the cooperating witness at trial. Wealso note that, after a request by defense counsel, the trial was adjourned for theafternoon following the cooperating witness's direct testimony to permit counsel to workon her cross-examination. Upon viewing the entirety of the record, we find that thedefendant failed to show that he suffered prejudice from the delay in disclosing theexistence of the cooperating witness and related materials (see People v Jingzhi Li, 104AD3d 704, 705 [2013]; People v Uka, 92 AD3d 907, 907 [2012]; see also People v Aviles, 119AD3d 871, 872 [2014]; cf. People v West, 271 AD2d 806, 806-807[2000]).
V. Remaining Contentions
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions raised in his pro se supplemental brief arewithout merit. Sgroi, Cohen and Maltese, JJ., concur.
Hall, J.P., dissents, and votes to reverse the judgments, grant that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials, and order a new trial, with the following memorandum: I respectfully dissentbecause, in my view, the cumulative effect of certain errors, which occurred both at thepretrial suppression hearing and at trial, require a reversal of the defendant's judgmentsof conviction.
[*7] "It is the People's burden toprove beyond a reasonable doubt that statements of a defendant they intend to rely uponat trial are voluntary. To do that, they must show that the statements were not products ofcoercion, either physical or psychological, or, in other words, that they were given as aresult of a 'free and unconstrained choice by [their] maker' " (People v Thomas, 22 NY3d629, 641 [2014] [citations omitted], quoting Culombe v Connecticut, 367US 568, 602 [1961]).
I have no disagreement with the majority's recitation of the facts of this case.However, based on these same facts, I conclude that the People failed to meet theirburden of establishing the voluntariness of the defendant's statements beyond areasonable doubt. As acknowledged by the majority, the People presented no directevidence that the defendant ate, drank any water, slept, or had access to the bathroomduring the up to 33-hour period of his detention at the precinct station house. There wasno evidence presented that the defendant even had the opportunity to eat, sleep, drink, oruse the bathroom during that time period (see People v Guilford, 21 NY3d 205, 210 [2013]; cf. People v Brown, 120 AD3d954, 955 [2014]; People vBonds, 118 AD3d 717, 718 [2014]).
Where, as here, there is a delay of up to 33 hours between the time a defendant isarrested and arraigned, and where that defendant is interrogated by multiple lawenforcement agencies, it is my view that the People must present evidence to demonstratethat the defendant was provided access to food, water, a bathroom, and sleep, in order toestablish that any statements, which were the product of such custodial interrogation,were made voluntarily. Such evidence is part of the People's burden. Indeed, in People v Jin Cheng Lin (26NY3d 701 [2016]), a recent Court of Appeals case relied on by the majority, thePeople presented direct evidence that the defendant's "basic human needs were providedfor because he was able to eat, drink, and take bathroom breaks" during his period ofdetention of over 24 hours (id. at 725). The defendant in Jin Cheng Linwas even allowed to smoke cigarettes (see id.). In contrast, there was no suchevidence presented here.
The majority's determination, which affirms the denial of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials, effectively places the burden on a defendant to show, in the first instance, thathe or she was not provided with basic necessities of life such as food, water, andthe opportunity to use a bathroom during the period of detention and custodialinterrogation. This burden shifting violates the well-settled principle that it is the People'sburden to prove beyond a reasonable doubt that statements of a defendant they intend torely upon at trial are voluntary (see People v Thomas, 22 NY3d at 642).Accordingly, I find that the Supreme Court should have granted that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementofficials.
In addition, Carlos Nicholls, a cooperating prosecution witness who was with thedefendant shortly before the carjacking, improperly suggested, during his trial testimony,that the defendant had committed other, uncharged crimes, and had a "bad character orpropensity towards crime" (People v Morris, 21 NY3d 588, 594 [2013]). Contrary tothe majority's conclusion, however, I do not believe that the Supreme Court's curativeinstruction was sufficient to ameliorate the prejudice to the defendant caused byNicholls's improper testimony. The jury heard detailed testimony from Nicholls abouthow he and another individual, designated as "Accomplice A," whom the jury couldreadily conclude was the defendant, stole cars and created fake identification cards andfraudulent documents. This suggested that the defendant had a criminal propensity tocommit crimes involving stolen cars and fake identifications, which were the crimesunderlying the attempted murder, robbery, and assault charges at issue here. Furthermore,some of these uncharged crimes were identical to the criminal possession of a forgedinstrument counts. Under these circumstances, despite the court's instruction not toconsider the letters designating the accomplices, the impermissible suggestion that thedefendant had a propensity to commit theft crimes could not have been ignored by thejurors. "A court's instructions to a jury to disregard matters improperly brought to theirattention cannot 'always assure elimination of the harm already occasioned' "(People v Calabria, 94 NY2d 519, 523 [2000], quoting People vCarborano, 301 NY 39, 42 [1950]).
I am also troubled by the fact that Nicholls's existence was not even disclosed to thedefense until the conclusion of jury selection. This prejudiced the defendant in thatdefense counsel was not provided with an opportunity to question prospective jurorsabout their attitudes toward cooperating witnesses who receive a benefit from thegovernment in exchange for their testimony. [*8]Then, inpiecemeal fashion, the prosecutor gave defense counsel Nicholls's statements andminutes of his guilty plea, in which he admitted possessing the gun used to shoot thecomplainant in this case. Under these circumstances, the delayed and piecemealdisclosure of Rosario material (see People v Rosario, 9 NY2d 286 [1961])prejudiced the defense by not allowing a meaningful opportunity to investigate Nichollsand his potential identity as the man who shot the complainant (see People v Wagstaffe, 120AD3d 1361, 1364 [2014]; People v Roberts, 203 AD2d 600 [1994]).
The People maintain that they properly delayed disclosure of Nicholls's existence andthe related discovery materials pursuant to a protective order. This is troubling to me aswell, since, based on the record before this Court, it cannot be determined if the SupremeCourt providently exercised its discretion in issuing the protective order.
Furthermore, contrary to the majority's determination, I find that the Supreme Courterred in denying the defendant's request for a missing witness charge with respect to thecomplainant's son. The witnesses at trial estimated the assailant's height to be betweenfive feet eight inches and 5 feet 10 inches. The complainant's son, however, who was aneyewitness to the crime, described the assailant as being six feet one inch or six feet twoinches. Thus, the complainant's son's description of the assailant, which was up to fiveinches taller than the descriptions given by other witnesses, went directly to a materialissue pending in the case, i.e., the identity of the assailant, and differed materially fromthe descriptions provided by the People's witnesses (cf. People v Miller, 282AD2d 691 [2001]).
Under these circumstances, the defendant made an adequate prima facie showing thatthe complainant's son was knowledgeable about a material issue in the case, that he couldbe expected to testify favorably to the People, and that he was available and in thePeople's control. In response, the People failed to meet their burden of establishing that amissing witness charge would be inappropriate (see People v Gonzalez, 68 NY2d424, 428 [1986]; People vDays, 131 AD3d 972, 974 [2015]). Contrary to the majority's conclusion, I donot find that the testimony of the complainant's son as to the assailant's height wouldhave been immaterial. As indicated above, the testimony of the complainant's son wouldhave differed materially from the testimony of the other prosecution witnesses regardingthe assailant's height and, if such testimony was introduced, the resolution of thediffering testimony would have been placed squarely before the jury. Consequently, thedefendant's request for a missing witness charge should have been granted.
Moreover, it is my opinion that these cumulative errors cannot be consideredharmless, as the evidence of guilt was not overwhelming (see People v Crimmins,36 NY2d 230, 241-242 [1975]; People v Days, 131 AD3d at 981). Specifically,the People's evidence as to the defendant's identity as the carjacker and shooter was notoverwhelming, as the assailant wore a mask concealing his entire face except for his noseand eyes. In any event, the errors deprived the defendant of a fair trial.
Accordingly, I vote to reverse the judgments, grant that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials, andorder a new trial.