| People v DeFelice |
| 2018 NY Slip Op 05781 [164 AD3d 697] |
| August 15, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph DeFelice, Appellant. |
Carol E. Castillo, E. Setauket, NY (Judah Serfaty of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Karla Lato of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (John J.Toomey, J.), rendered November 14, 2013, convicting him of murder in the second degree,criminal facilitation in the second degree, and hindering prosecution in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the matter is remitted to the County Court, Suffolk County, for a reconstructionhearing in accordance herewith and thereafter a report to this Court with all convenient speed,and the appeal is held in abeyance in the interim.
The defendant was charged, among other things, with acting in concert with a codefendant tocommit murder in the second degree in connection with the death of the defendant's girlfriend.After a jury trial, the defendant was convicted of murder in the second degree, as well as criminalfacilitation in the second degree and hindering prosecution in the first degree.
During the course of the trial, defense counsel informed the trial court that, according to thenotes of an investigating police detective, the police had interviewed witnesses to whom thecodefendant had made statements regarding his involvement in the shooting of the defendant'sgirlfriend. Defense counsel requested to be given the material reflecting those statements, arguingthat it constituted Brady material (see Brady v Maryland, 373 US 83 [1963]).Alternatively, defense counsel requested that the court review the material to determine whetherit should be disclosed under Brady. The trial court agreed to review the material incamera. No material was ultimately disclosed to the defendant.
On appeal, the defendant argues that the failure to disclose the requested material constituteda Brady violation. The People were unable to provide to this Court any material theyprovided to the trial court for in camera review. They indicate that they have no record in theirfiles of what material may have been submitted to the trial court. The People assert that,nevertheless, the defendant's Brady claim is based on matter dehors the record, and thuscannot be reviewed on direct appeal. However, to the extent that material was produced to thetrial court for in camera review, it is properly part of the record, and the defendant'sBrady claim would thus be reviewable on direct appeal. Under these circumstances, wedeem it appropriate to remit the matter for a hearing [*2]toreconstruct the record as to what, if any, material was provided to the trial court for in camerareview (see People v Yavru-Sakuk, 98 NY2d 56, 60-62 [2002]), and thereafter to reportto this Court with all convenient speed. The appeal is held in abeyance in the interim, and we donot decide any other issues at this time. Scheinkman, P.J., Balkin, Sgroi and LaSalle, JJ.,concur.