Opinion
0398-92.
Decided January 3, 2011.
Hon. Janet DiFiore, District Attorney, Westchester County, White Plains, New York.
Attn: John Sergi, Esq., Adrienne Chapoulie, Esq., Assistant District Attorneys, Barry Jay Skwiersky, Esq., Attorney for Defendant, Mount Vernon, New York.
The defendant was convicted following a jury trial in the Westchester County Court (West, J.) of manslaughter in the first degree and criminal possession of a weapon in the second degree and was sentenced on November 25, 1992, as a second felony offender, to concurrent terms of imprisonment of 12 ½ to 25 years on the manslaughter count and to 7 ½ to 15 years on the weapon possession count. By Decision and Order dated December 1, 2009, this Court granted defendant's application for the assignment of counsel to assist him on this CPL 440.10 motion. Counsel has now submitted a motion on defendant's behalf, the People have submitted an Affirmation in Opposition, and defendant has submitted a Reply.
As no authorization was given by the Court for the filing of a sur-reply, the People's sur-reply has not been considered.
The defendant moves, pursuant to CPL 440.10, to vacate his conviction based upon the People's failure to disclose exculpatory evidence to him prior to trial. He contends that in response to a Freedom of Information Law ("FOIL") request presented by his mother to the City of Mount Vernon, on February 19, 2008, 16 years after his conviction, he received two police reports that were never disclosed to him or to his trial counsel. The first police report contained statements of Herman Hardy (or "Hardee") an eyewitness to the shooting incident that formed the basis of the charges, indicating that at the time of the shooting, Hardy saw the victim's friend who was standing next to the victim, picking up a rifle. This police report further indicated that Hardy's niece, 28 year old Brenda Hardy, was present with him at a location across the street at the time of the shooting. The second police report indicated that Hardy had testified as a witness before the grand jury.
In support of the CPL 440.10 motion, the defendant argues that the previously undisclosed police reports, the grand jury testimony of Herman Hardy and the identity of Brenda Hardy as an eyewitness were each items of Brady material favorable to the defense that the People failed to disclose to him prior to trial. He argues that the People's failure to disclose this exculpatory material which could have been used to 1) support a justification defense, 2) impeach the testimony of trial witnesses, or 3) persuade the jury that he recklessly caused the death of the victim (manslaughter in the second degree), requires reversal of his conviction and a new trial or dismissal of the indictment.
Factual and Procedural Background
On February 11, 1992, the defendant and two friends, brothers Derrick and Tico Johnson (hereinafter referred to as "Derrick" and "Tico" respectively), were walking together on South Columbus Avenue in Mount Vernon, New York. At that time, another group of three men, Andre Frank (the "victim"), Gerald Smith ("Smith") and Jerry Love ("Love") were walking down the same street in the same direction. The two groups approached each other and met in the center of the sidewalk in front of 216 South Columbus Avenue, after the victim made a hand motion for the defendant to stop. The victim extended his hand for "peace" with the defendant. However, the defendant and the victim began fighting with one another instead. Love, who was part of the victim's group, then charged at Tico, who was one of defendant's group, threw him into a nearby fence and began punching him in the face and head. Love and Tico were fighting right near the location where the victim and the defendant were fighting.
At this point the defendant stepped away from the group, extended his arm and fired one shot from a handgun in the direction where Love, Tico and the victim were, which hit the victim in the lower abdomen. The victim ran down South Columbus Avenue in the direction of his home after the shooting, but fell to the ground. Smith ran to the victim's house to tell his mother of the shooting. The victim died of his injuries at Mount Vernon Hospital one day later, after undergoing surgery for wounds resulting from the gunshot. The defendant was arrested within hours of the shooting. The gun used to shoot the victim was recovered from the apartment of defendant's friend Franklin Mann, where he had left it following the shooting.
The defendant was indicted on two counts of murder in the second degree (intentional murder and reckless murder), one count of criminal possession of a weapon in the second degree and one count of criminal possession of a weapon in the third degree. The defendant was arraigned on the indictment on March 18, 1992, and pleaded not guilty. The People provided consent discovery to the defendant on March 25, 1992. The People also provided two letters to the defendant dated March 30, 1992, each identifying an individual "in connection with the above referenced case."
Although Derrick and Tico Johnson were initially charged with murder in the second degree with respect to this incident, the charges against them were dismissed at a felony hearing held in Mount Vernon City Court.
The first letter identified Evangeline Heatley, giving her address as 203 South Columbus Avenue, while the second letter identified "Herman Hardee" giving his address as "55 Warren Street, Apt. 5O, Staten Island, New York."
Thereafter on May 4, 1992, defense counsel George Fufidio made an omnibus motion requesting, inter alia, further pretrial discovery. Specifically, he requested the People furnish the defendant with any Brady material, including "Any information that would support the defense of justification including but not limited to the victim's reputation for violence, the victim's past participation in similar incidents and the presence of other weapons at the scene of this incident" (Exh. E, Def. Notice of Motion). The trial Judge rendered a decision on the omnibus motion dated June 4, 1992, ordering the People to provide the defendant with "any and all" exculpatory material as soon as possible after discovery of same (Exh. G, Def. Notice of Motion).
On September 18, 1992, just prior to the pretrial Wade and Huntley hearings scheduled for September 21, 1992, the People provided defense counsel with additional materials, including a copy of a Mount Vernon Police Department supplementary report by Detective Waters which had been completed by Waters on March 8, 1992 (the "March 8th Report"). In this March 8th Report, Detective Waters indicated that he had interviewed Herman "Hardy" on February 29, 1992, at which time Hardy stated "that he saw the fight because he was in his front yard at the time of the shooting." The March 8th Report continued: "Mr. Hardy states that there was a rifle at the scene, but only one shot was fired by the boy with the hand gun. Mr. Hardy states that after the shooting one of the boys ran up the driveway where Mrs. Brooks lives [231 So. Columbus Ave.] with the rifle."
The trial then commenced on October 1, 1992, following jury selection. With respect to witnesses who were present at the time of the shooting, the People called the victim's two friends, Love and Smith, who each testified there was no rifle at the scene and that the victim did not possess any weapon. The defendant called two witnesses to testify, Evangeline Heatley, who lived across the street from the scene, and Derrick Johnson, the defendant's friend who had been with him at the time of the shooting.
Heatley testified she had just parked her car and was about to cross South Columbus Avenue to go home when she saw two groups of boys, a total of six, engage in a scuffle with each other in the middle of the street. Following the scuffle, and after hearing the shot, she saw four of the individuals run off towards Third Street. Shortly thereafter, she saw a person returning from the direction of Third Street carrying what appeared to be a rifle. Although she thought the person carrying the rifle was one of the individuals she had seen in the scuffle, she couldn't be sure, because she really couldn't identify any of them.
Derrick Johnson, the defendant's friend who had been involved in the incident, testified that during the incident, prior to the moment the victim was shot, he saw Love lift up his sweatshirt and pull a shotgun handle halfway out. The defendant did not testify. Herman Hardy was not called as a witness.
At the close of evidence, the defendant requested a justification charge. His request was denied by the trial Judge on the basis that there was no evidence in the record that the defendant saw any deadly force about to be used against him or against any third person.
During summations, the prosecutor George Bolen specifically argued that there was no credible evidence in the case that there was a rifle or shotgun present at the scene before the defendant fired. He stated: "There is absolutely no evidence on this record, any credible evidence, that any rifle or shotgun or any portion of any rifle or shotgun reared its ugly head before this defendant fired the gun when he did" (Trial transcript at 764).
The Court submitted to the jury the charges of Murder in the second degree [intentional murder] with the lesser included offense of manslaughter in the first degree, Murder in the second degree [depraved indifference/reckless murder] with a lesser included offense of manslaughter in the second degree, and criminal possession of a weapon in the second degree. The defendant was convicted upon the jury's verdict of manslaughter in the first degree and criminal possession of a weapon in the second degree. He was sentenced on November 25, 1992 to concurrent terms of 12 ½ to 25 years on the manslaughter count and to 7 ½ to 15 years on the weapon possession count. His conviction and sentence were affirmed on direct appeal ( see People v Hairston, 226 AD2d 393 (2d Dept 1996), and his application for leave to appeal to the Court of Appeals was denied ( People v Hairston, 88 NY2d 966 (1996)).
The defendant remains incarcerated to date with respect to this sentence.
Defendant's Later Discovery of Undisclosed Evidence
After the defendant's mother submitted a FOIL request on his behalf to the City of Mount Vernon demanding all documents related to this case, on February 19, 2008, he received 58 pages of documents, among which were two police reports with respect to this case that had not been previously disclosed to him. The first was a Mount Vernon Police Department Supplementary Report dated March 2, 1992 signed by Detective Waters. This previously undisclosed March 2nd Report stated in relevant part:
The defendant has annexed the affidavit of his trial counsel, George Fufidio, Esq., who indicated that the March 2, 1992 Report was not contained in his files and he did not recall having been provided with it during the case. His file did contain copies of the correspondence with the prosecutor and a copy of the previously disclosed March 8, 1992 Report.
"On 2/29/92 the undersigned detective spoke with Mr. Herman Hardy in regards to this homicide. Mr. Hardy stated that he and his niece Brenda Hardy aka Brenda Berry were in front of his house at [] when the altercation broke out. Mr. Hardy stated that one of the boys pulled a hand gun and shot the victim while one of the victims friends picked up a rifle from the curb near a parked car. Mr. Hardy stated that the person with the rifle didn't fire any shot, but did chase the suspects that shot Andre Frank down Columbus Avenue."
A second police report completed by Detective Waters, dated March 12, 1992 was also produced pursuant to the FOIL request. This March 12th Report, which had not been previously disclosed to the defendant, indicated that Herman Hardy had testified before the grand jury in this case.
Discussion
The Due Process Clauses of the Federal and State Constitutions both guarantee a criminal defendant the right to discover favorable evidence in the People's possession material to guilt or punishment ( Brady v Maryland, 373 US 83 (1963); People v Fuentes , 12 NY3d 259 (2009)). Disclosure of impeachment evidence falls within a prosecutor's disclosure obligation pursuant to Brady ( People v Fuentes, supra at 263). Thus, to establish a Brady violation, a defendant must show that "(1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ( People v Fuentes, supra at 263 citing Strickler v Greene, 527 US 263, 281-82 (1999)).
Further under the New York rule, if a general demand for Brady material has been made, evidence will be deemed material if there is a "reasonable probability" that had it been disclosed to the defense, the result would have been different — i.e., a probability sufficient to undermine the court's confidence in the outcome of the trial ( People v Bryce, 88 NY2d 124 (1996); People v Vilardi, 76 NY2d 67 (1990)). However, where a prosecutor has been made aware by a specific request that the defendant considered certain material important to the defense, a showing of a "reasonable possibility" that the failure to disclose contributed to the outcome at trial is the appropriate standard to measure materiality ( People v Vilardi, supra at 77).
In response to the defendant's claim that Brady violations occurred in this case, the People respond that: 1) there was no suppression of Brady material since they sent a letter to defense counsel identifying Hardy to the defendant in connection with the case, and provided the March 8th Report which indicated Hardy had placed a rifle at the scene; and 2) there was no reasonable probability or possibility of a different outcome had Hardy testified at the trial. They also claim the disclosures made to the defendant were sufficient to have enabled him to have located Hardy as a witness.
For the reasons that follow, this Court finds that the prosecutor in this case failed in his obligation to disclose Brady material to the defense and that there was a reasonable possibility of a different outcome at trial had he adhered to his obligation to do so.
Failure to Disclose Brady Material
The March 2nd Report, in which Hardy indicated that he witnessed one of the boys pull a hand gun and shoot the victim while one of the victim's friends picked up a rifle from the curb near a parked car, was never disclosed to the defense prior to or during the trial in this case. The March 2nd Report further indicated that Hardy's niece, Brenda Hardy, was present with him in his front yard at the time of the shooting. The defense was never given her name in connection with the case.
In addition, the March 12th Report, indicating that Hardy had testified before the grand jury, was never disclosed to the defense in this case. The People did not inform the defendant that Hardy had testified before the grand jury and Hardy's grand jury testimony was never disclosed to him.
Certainly, the March 2nd Report containing the statement of an eyewitness to the shooting, Hardy, who placed a rifle in the victim's friend's hand at the time of the shooting goes directly to the defendant's justification defense and is clearly favorable to the defendant ( see e.g., People v Knight, 18 Misc 3d 1129A (Sup Ct., Qns Co. 2007)). Although the People assert that disclosure of the March 2, 1992 Report was not required since they had earlier identified Hardy to the defendant in connection with the case, and provided the March 8th Report which indicated Hardy had placed a rifle at the scene, the Court finds this argument unavailing.
As stated in United States v LeRoy ( 687 F2d 610, 618 (2d Cir. 1982)), cited by the People, evidence is not "suppressed" if the defendant either knew, or should have known of the essential facts permitting him to take advantage of any exculpatory evidence ( see also United States v Zackson, 6 F3d 911 (2d Cir. 1993)). In this case, any prior disclosures relating to Hardy — whether the letter identifying his name or the March 8th Report — did not reveal that he witnessed a rifle in the victim's friend's hands at the time of the shooting. The defendant had not been provided with sufficient information to determine that this witness had exculpatory information to offer. In this Court's view, the prosecutor's failure to disclose the March 2nd Report which was clearly in his possession and control constituted suppression of Brady material. This failure to disclose the police report of Hardy's statement, which contained information in support of a justification defense known only to the prosecution, went well beyond any of the factual circumstances in the cases cited by the People in support of their position ( see e.g., United States v Grossman, 843 F32d 78 (2d Cir. 1988) [no Brady violation found where defendant knew the identity of the witness and had been informed specifically by the government's letter that the witness "might have given the grand jury exculpatory testimony"]).
Thus, for example, documents that are part of public records are not deemed suppressed if defense counsel should know of them and fails to obtain them because of lack of diligence in his own investigation ( United States v Bermudez, 526 F2d 89 (2d Cir 1975)).
The defendant also raises the valid point that the prosecutor gave Hardy's address as a location in Staten Island, when he also had an address on file located on the street where the shooting incident occurred. In addition, Hardy was also incarcerated during much of the pre-trial time period in this case and the prosecutor did not notify the defense as to his whereabouts in that regard either.
Compounding the prosecutor's failure to disclose the March 2nd Report, was his additional failure to disclose the March 12th Report which indicated that Hardy had testified before the grand jury. The defense was never informed that Hardy was a grand jury witness or of his testimony given before that body that would have supported a justification defense. At the same time the People argue that the defendant "should have known" of the possibility that Hardy had testified before the grand jury since they had disclosed his name to the defense, they also withheld the police report indicating he did in fact give testimony before the grand jury.
Lastly, the undisclosed March 2nd Report also indicated that there had been another person present across the street with Hardy at the time of the shooting who was a possible eyewitness, Brenda Hardy, whose name was never provided to the defense. Without the disclosure of these police reports which were in the prosecutor's possession and control, the defendant was deprived of any information of this witness.
Materiality
In this case, the defendant, in his omnibus motion, made a specific request for Brady material, including "Any information that would support the defense of justification including but not limited to the victim's reputation for violence, the victim's past participation in similar incidents and the presence of other weapons at the scene of this incident." Where a specific request has been made for evidence, as it was here, the standard to be applied is whether there is a "reasonable possibility" that the failure contributed to the verdict ( see People v Vilardi, supra; People v Daly , 57 AD3d 914 (2d Dept 2008)).
The crux of the issue here is that had the defendant been provided with the March 2nd Report and/or the grand jury testimony of Hardy that he saw the victim's friend, standing near the victim, picking up a rifle at the time of the shooting, this would have entitled him to a justification charge ( see People v Padgett, 60 NY2d 142, 144 (1983) [justification charge required "if on any reasonable view of the evidence, the fact finder might have decided that defendant's actions were justified"]; see also People v Knight, supra [ Brady violation found where the People failed to disclose evidence in support of justification defense]). At trial, defense counsel requested a justification charge, but without the suppressed statements of Hardy placing a gun in the hands of the victim's friend at the time of the shooting, the trial Judge denied the request, as there was no basis to give the charge found in the record as it existed.
Moreover, in the face of having in his possession the March 2nd Report where Hardy explicitly stated to the police detective that he saw the victim's friend, standing near the victim, picking up a rifle at the time of the shooting, which Report he never disclosed to the defense, prosecutor Bolen argued to the jury in his summation: "There is absolutely no evidence on this record, any credible evidence, that any rifle or shotgun or any portion of any rifle or shotgun reared its ugly head before this defendant fired the gun when he did."
The two witnesses who did testify in the defendant's behalf did not have the same information that would have supported a justification charge as was contained in the suppressed statement of Hardy. The first defense witness, Heatley, testified only that she saw one of the boys running back to the scene after the shooting with the rifle. The other defense witness, Derrick Johnson, who was defendant's friend and an interested witness for that reason, stated that he saw a rifle on the person of the victim's friend but that he did not witness him pull it out.
Since the defense in this case made a specific request for evidence in support of a justification defense, the standard to be applied is whether there is a "reasonable possibility" that the failure contributed to the verdict. This Court finds that under the circumstances presented here, the failure to disclose such evidence to the defense resulted in a reasonable possibility that the outcome would have been different ( see People v Garcia , 46 AD3d 461 (1st Dept 2008)). Accordingly, this Court finds that a Brady violation occurred.
CPL 440.10 Relief
In deciding a motion pursuant to CPL 440.10, the court need not hold a hearing if the parties submissions are sufficient to render a determination (CPL 440.30(1), (3); see also People v Satterfield, 66 NY2d 796 (1985)). On an application pursuant to CPL 440.10, the defendant must show that the nonrecord facts sought to be established are material and would entitle him to relief ( People v Satterfield, supra; People v Coleman , 37 AD3d 491 (2d Dept 2007)).
In support of his motion, the defendant has presented the affidavit of his trial counsel indicating he did not receive the above mentioned Brady material, as well as copies of the previously undisclosed police reports. The People have not demonstrated any issue of fact which would require a hearing.
For all the foregoing reasons, the defendant has met his burden on this motion by demonstrating that a material Brady violation occurred, resulting in a reasonable possibility that the outcome would have been different had this material been timely disclosed to him. Accordingly, the defendant's conviction is hereby vacated and a new trial ordered.
The Court considered the following papers on this motion: Defendant's Notice of Motion dated July 12, 2010, Affirmation in support, Memorandum of Law, Exhibits A-O. People's Affirmation in Opposition dated September 17, 2010, Memorandum of Law, Exhibits 1-14. Defendant's Reply Memorandum of Law received October 8, 2010.
This Decision constitutes the Order of the Court.