Opinion
074-2012
08-06-2012
People of the State of New York, Plaintiff, v. Amen Maldonado, , Defendant.
John R. Kelly, Esq. Attorney for Defendant Hon. James R. Farrell Sullivan County District Attorney By: Eamonn P. Neary, ADA, of counsel Attorney for the People
John R. Kelly, Esq.
Attorney for Defendant
Hon. James R. Farrell
Sullivan County District Attorney
By: Eamonn P. Neary, ADA, of counsel
Attorney for the People
, J.
On July 16, 2012, the Court conferenced this matter with the trial ADA and defense counsel concerning non-disclosure of Brady material. The trial had already started: voir dire was completed and a jury had been seated, both the trial ADA and defense counsel completed opening statements, trial testimony began with the People's witnesses, New York State Police Investigator Nancy Stack, and the complainant/wife of defendant. The jury already viewed and heard lengthy controlled calls and an audio/video recording of Investigator Stack's interrogation of Defendant. Both the controlled calls and audio video recording lasted in excess of one hour. It was through Investigator Stack's testimony that defense counsel learned that she was aware of a Sullivan County Sheriff's report and a Sullivan County Child Protective Services (hereinafter "CPS") report regarding the instant charges.
Defendant filed a written motion for a mistrial based on alleged Brady violations. On July 18, 2012, the People submitted an affirmation in opposition and on July 23, 2012, Defendant submitted a reply. Defendant had timely filed an omnibus motion in this case and the People acknowledged they had either turned over all Brady material and/or recognized their continued obligation to do so.
Background
Following a New York State Police and Sullivan County Domestic Violence Response Team (hereinafter, "SCDVRT") investigation in conjunction with the Sullivan County District Attorney's office, on April 4, 2012, the Sullivan County Grand Jury returned Indictment 074-2012, charging Defendant with the single count of Course of Sexual Conduct Against a Child in the Second Degree, PL §130.80(1)(b), a Class D violent felony. The People alleged that over a period of nine months, from September of 2010 to June of 2011, Defendant fondled the breasts of and placed his fingers inside the vagina of his 11 year old daughter on at least two occasions.
Defendant was arraigned and pleaded not guilty to the Indictment. At the arraignment, the Court ordered full discovery, as is routinely done by this Court. Said order facilitated Defendant's omnibus motion or any other discovery demands. Defendant subsequently served and filed an omnibus motion, which included discovery demands for Brady and Rosario material.
Unable to negotiate a plea resolution, the matter proceeded to trial. Jury selection commenced on July 6, 2012, and opening statements were made on July 10, 2012. The People also called their first witness on July 10. The trial continued on July 12 and 13 with testimony.
On July 13, during cross-examination of the People's witness, Investigator Nancy Stack of the New York State Police, defense counsel learned for the first time that there existed a report from Sullivan County Sheriff's Deputy Muthig concerning his investigation of the case. Defendant contends the report contains Brady material gathered by Deputy Muthig and Detective Cyrus Barnes, also of the Sullivan County Sheriff's Office, during Deputy Muthig's July, 2011, interviews of Defendant's father-in-law and Defendant's wife. Defendant also demanded production of the missing person report filed by Defendant with the Sullivan County Sheriff's Office on July 6, 2011. Although defense counsel was aware his client contacted the police regarding his wife, he was unaware any written report existed prior to cross-examining Investigator Stack; it was at that time defense counsel found out the Sullivan County Sheriff's Deputy spoke to the Defendant's wife on July 6, and then on July 12, 2011, at which time he first learned of her criminal allegations resulting in the present indictment.
It was the People's position that because Defendant made the missing person call, he knew a report existed, so the People had no obligation to disclose it. The People further contended that the report contained no Brady material and was not in the People's possession prior to July 13, 2012; they nevertheless produced the report within an hour. Defense counsel then requested an adjournment so he could review the contents of the report, since now, for the first time, both the District Attorney and defense counsel learned that a Sullivan County Sheriff's detective spoke to the complainant. This Court granted the adjournment and also ordered production of the police investigative notes defense counsel first learned of that morning in court during trial.
Later in the day on July 13, 2012, in an effort to resolve this matter, defense counsel met with the Sullivan County District Attorney to discuss the possibility of a plea. The parties could not come to an agreement. According to the People, shortly after that meeting, District Attorney Farrell reviewed the entire file, and instructed the Assistant assigned to the case to obtain any notes in the Sullivan County Child Protective Services (hereinafter "CPS") case file regarding the matter. The assigned caseworker was Georgia Harris. The People had previously turned over the child abuse hotline report with Ms. Harris' handwritten notes upon it, but did not turn over any of her other notes or her final narrative of her investigation into the matter.
Promptly, upon the District Attorney's request, on Friday, July 13, 2012, CPS caseworker Georgia Harris faxed an 11-page document to the People purportedly containing all of her notes and a narrative form in connection with her investigation of the case. The trial Assistant District Attorney in turn promptly faxed the document to defense counsel that same day. Defense counsel contends in the within motion that Ms. Harris, as part of the Sullivan County Domestic Violence Response Team (SCDVRT) conducted her interview on July 26, 2011, but it was not memorialized until November 1, 2011, over three months later. It is Defendant's position that the People had to have been aware of Ms. Harris' investigation, failed to disclose the November 1, 2011, CPS report from Georgia Harris, which contains exculpatory statements made by the alleged victim/complainant, the now 12-year old daughter, and therefore violated Brady. The District Attorney's office claims it was never aware of the CPS report even though Investigator Stack was aware of it.
On July 16 defense counsel served the People with a letter motion for a mistrial based on the People's failure to provide Defendant with Deputy Muthig's notes regarding the telephone interview of the complainant/mother and Ms. Harris' report, alleging all contain either exculpatory evidence and/or impeachment evidence, that the People had possession or control of the evidence through the police and other personnel on the SCDVRT, and failed to provide it to Defendant in a timely manner, and that the evidence was material.
Brady
Discovery and the disclosure of exculpatory material by a prosecutor are fundamental to a fair trial. "Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 US 83, 87 [1963]. The purpose of this rule of discovery is to avoid "an unfair trial to the accused." Id . "A prosecution that withholds evidence on demand of an accused which, if made available would tend to exculpate him does not comport with standards of justice." Id .
The United States Supreme Court has revisited Brady many times and has never wavered from the premise that "when the state withholds from a defendant evidence that is material to his guilt or punishment, it violates his right to due process of law under the Fourteenth Amendment." Cone v. Bell, 556 US 449, 469 [2009]. "[E]vidence is material if there is a reasonable probability, that had the evidence been disclosed, the result of the proceeding would have been different....[Citations omitted]'....A reasonable probability means that the likelihood of a different result is great enough to undermine [] confidence in the outcome of the trial.'" Smith v. Cain, 132 S.Ct. 627, 630 [2012], citations omitted; see also, United States v. Bagley, 473 US 667, 682 [1985], in which the Court stated that a prosecutor's failure to fully respond to a defendant's Brady request "not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist." The Bagley Court also stated that "In reliance on [a] misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it might otherwise have pursued." United States v. Bagley, 473 US at 682, citations omitted.
Most recently, the U.S. Court of Appeals for the Second Circuit held that federal prosecutors violated Brady by failing to turn over transcripts from other proceedings that contained contradictory testimony of key government witnesses, thereby depriving the defendants of a fair trial. United States v. Mahaffy, 2012 US App LEXIS 16072 [2nd Cir. 2012].
The government's failures to comply with Brady were entirely preventable. On multiple occasions, the prosecution team either actively decided not to disclose the SEC deposition transcripts or conclusively avoided its responsibilities under Brady....The two trials were unfairly skewed against the defendants, who were forced to mount their defenses without the benefit of material exculpatory and impeaching sworn testimony.Id., at 46. The Court rejected the government's argument that some of the material was inadmissible or actually supported the prosecution. "The fact that the government is able to argue that portions of the transcript were consistent with the prosecution's theory fails to lessen the exculpatory force of sworn...testimony....[W]here suppressed evidence is inculpatory as well as exculpatory, and its exculpatory character harmonizes with the theory of the defense case' a Brady violation has occurred." Id ., at 36, citations omitted. Furthermore, even if the suppressed evidence were inadmissible, it was material if it could have led "defendants to interview and possibly subpoena" others or obtain admissible evidence tending to support defendants' theory of defense. Id ., at 36, citations omitted.
In New York, the duty to disclose information includes "disclosure of evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence." People v. Alonso, 91 AD3d 663, 664 [2nd Dept. 2012]. If the evidence is favorable to the defendant because it is exculpatory or impeaching in nature, was suppressed by the prosecution willfully or inadvertently, and such failure to disclose the evidence prejudiced the defendant, there exists a Brady violation. Id; People v. Williams, 50 AD3d 1177 [3rd Dept. 2008]. While a prosecutor does not have an obligation to investigate a case to obtain exculpatory or impeaching evidence, the Court of Appeals has held that an "individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." People v. Wright, 86 NY2d 591, 598 [1995], citations omitted; emphasis added.
When a defendant makes a specific request for discovery, the materiality requirement is met if the defendant can show there was a reasonable possibility that timely disclosure of the evidence in question would have changed the result of the proceedings. People v. Vilardi, 76 NY2d 67 [1990]; People v. Poventud, 10 Misc 3d 337 [2005]. The specific request need only specify Brady material, not actual specific documents. People v. Garcia, 46 AD3d 461, 467 [1st Dept. 2007]. If there is no specific request by a defendant, materiality may be shown if there was a reasonable probability that disclosure of the evidence would have changed the result of the proceedings. People v. Hunter, 11 NY3d 1 [2008]. Prejudice to a defendant may be shown if untimely disclosure or nondisclosure of Brady material adversely affected defense counsel's strategy. People v. Sosa, 255 AD2d 236 [1st Dept. 1998], lv denied, 93 NY2d 979. Not only do the People have a duty to disclose that which they know is Brady material, but they also have an obligation to inform the trial court of the "existence of material not believed by them to require disclosure but as to which there may exist an element of doubt." People v. Gonzales, 74 AD2d 763, 765 [1980], emphasis added.
When an alleged violation is discovered during a trial and defense counsel makes a motion for sanctions or a mistrial, if the Court finds there was a disclosure violation, "the determination of what [sanction] is appropriate is committed to the trial court's sound discretion....The court's attention should focus primarily on the overriding need to eliminate prejudice to the defendant." People v. Martinez,71 AD2d 937, 940 [1988].
Discussion
The People in the instant matter claim Ms. Harris' CPS report (narrative) as well as Deputy Muthig's report were not in their possession prior to July 13, 2012. Even if true, it is irrelevant to the instant Brady issue. People v. Wright, supra . Defendant has argued, however, that this is not so; that Investigator Stack testified that she is part of the Sullivan County Family Violence Response Team (SCFVRT) and as such, conducted joint interviews with CPS workers. Both government agencies routinely work with the Sullivan County District Attorney's office when investigating a criminal case. A review of the arrest report prepared by Investigator Stack and the CPS report show that the agencies conducted joint interviews in this matter. In addition, Investigator Stack knew of Deputy Muthig's written report and stated so during cross-examination. Also, both Investigator Stack and caseworker Harris participated in joint conferences and interviews on this matter at the Sullivan County District Attorney's office with an Assistant District Attorney present.
The People have put forth "a host of excuses as to why [the information sought by Defendant and the reports are] not Brady material," none of which excuse their obligations under Brady. United States v. Mahaffy, supra at 36. For the People to claim they had no knowledge of Ms. Harris' notes and CPS report or Deputy Muthig's report is cause for concern and not supported by the testimony of Investigator Stack or CPS caseworker Harris. They knew of the Kentucky CPS report, which did not contain exculpatory or impeaching evidence, and they obtained and disclosed that report promptly. They obtained and disclosed the hotline report with Ms. Harris' handwritten notes upon it, but did not request all of her notes or her final report from her investigation into the matter, even though Ms. Harris had been at the District Attorney's office for the aforementioned conferences and interviews. Knowing Ms. Harris responded to the hotline report, the People had an obligation of due diligence to request and disclose all of her notes and reports in connection with this matter. People v. Wright , supra .
The People's argument that Deputy Muthig's report and the CPS report contain no Brady material is without merit. Deputy Muthig's notes from his July 6, 2011, conversations with Defendant's wife and father-in-law indicate neither had any concern for the safety or welfare of the children, that everything was fine, and that Defendant's wife was not in any fear of him. This information could have led defense counsel to investigate the matter differently and would have led to additional evidence that would have greatly assisted defense counsel—for example, that the reasons for defendant's wife leaving him evolved over a period of time and were unrelated to their children. People v. Sosa , supra . The People have argued these statements are inadmissible, but that is not a criterion for whether material is Brady. The admissibility of evidence is irrelevant in a Brady analysis if the information will likely lead to exculpatory evidence. See, US v. Ellsworth, 333 F3d 1 [2st Cir. 2003]. "[G]iven the policy underlying Brady, we think it plain that evidence itself inadmissible could be so promising a lead to strong exculpatory evidence that there could be no justification for withholding it." Id. at 10. Emphasis in original.
Had Deputy Muthig's notes from his conversation with Defendant's wife on July 6, 2011, that "she was on her way to Kentucky, and everything is OK," and his July 12, 2011, notes indicating "she is in Kentucky with her children, she also reported....she had recently found out her husband had forcibly touched their...daughter," defense counsel would have been in possession of a statement indicating the alleged victim's mother had no concerns on July 6, 2011, as well as her statement on July 12, 2011, which was inconsistent with her subsequent statements concerning when she found out and for how long she claimed the daughter was being abused. These notes constituted Brady material and should have been disclosed. While the District Attorney's office did not have an obligation to hunt down every lead to find exculpatory or impeaching evidence ( see, People v. Wright, supra ), it obviously was aware of Deputy Muthig's investigation, and with due diligence would have known he made notes and wrote a report Therefore, the District Attorney's office was under an obligation to obtain said material and disclose it to defense counsel after counsel specifically requested disclosure of Brady material. People v. Garcia , supra; People v. Santorelli, 95 NY2d 412 [2000]. Notwithstanding the trial prosecutor's claim that he lacked of knowledge of exculpatory information in the possession of the local police, CPS, and/or the SCDVTF, this court may still charge the People with knowledge of said exculpatory information. People v. Santorelli, 95 NY2d at 420 . Moreover, even if after reviewing the information, the People, as they now maintain, did not believe the notes to constitute Brady material, they were under an obligation to disclose the notes because the notes contained at least one inconsistent statement by Defendant's wife concerning her knowledge of the alleged abuse. People v. Gonzales , supra .
As for Ms. Harris' CPS report, it clearly contains a statement by the alleged victim (the daughter) that the mark on her neck was the result of "horseplay" with Defendant. The People's assertions that this is not Brady material is disingenuous. The alleged victim's statement contradicts the People's position and prosecutorial strategy that Defendant gave his daughter a "hickey" while inappropriately kissing her neck. Not only does the statement bear on the credibility of the alleged victim, defense counsel validly points out that disclosure of the report containing the statement would have caused him to further investigate how the mark may have appeared on her neck. The CPS report also contains time frames of events that are inconsistent with other reports. Again, this is Brady material and should have been disclosed. In fact, the People used the explicit sexual import of a "hickey" in the Grand Jury testimony of Investigator Stack; at trial the People mentioned the "hickey" in their opening statement and for hours the jury heard the audio-video recording of Investigator Stack and the complainant-wife grilling the defendant repeatedly about the "hickey.".
It is clear that the suppressed information in this case contained Brady material, "much of which was easily identifiable as such." United States v. Mahaffy, supra . The questioning of the Defendant by his wife, and Investigator Stack's grueling interrogation, in excess of one hour, of him centered on getting the defendant to admit that the mark on his daughter's neck was a "hickey" and not from "horseplay." Indeed, the only physical evidence of anything in this case was a reddish mark on the daughter's neck; it was this mark that formed the basis upon which the police and the District Attorney alleged there was a sexual touching. The daughter's admission to CPS caseworker Harris that the mark was the result of horseplay could have changed the outcome of the Grand Jury presentation as well as how the trial jury viewed the evidence and testimony to date. It adversely affected voir dire, defense counsel's opening statement and the jury's interpretation of the recorded extensive interrogation of Defendant by Investigator Stack. Overall the suppression of the Brady material in this case undermined the confidence in a fair outcome based on all available evidence. Smith v. Cain , supra .
This Court recognizes that untimely or late disclosure of Brady material does not necessarily violate due process if it can still be effectively used at trial, see, US v. Crawford, supra . If, however, a defendant can show that untimely disclosure deprived him of an opportunity to further investigate witnesses' backgrounds, explore and entrapment defense, explore illegal search and seizures issues, or use the information in an opening statement, there has been a violation of due process. Id .
In the instant matter, had the material been timely disclosed, defense counsel would have had an opportunity to further investigate Defendant's wife's background and motives; he would have been able to further investigate the relationship between the defendant and his wife and his father-in-law; he would have been able to further investigate the alleged victim and her conflicting statements to different people, or whether she in fact made any incriminating statements about her father; he would have been able to conduct voir dire differently, he would have used the information in his opening statement and to frame a defense, among other things. Defense counsel would have had additional information with which to examine the Defendant's wife. See United States v. Bagley, supra .
Under the circumstances, this Court finds that the People failed to comply with their known and continued obligations under Brady by their failure to timely disclose exculpatory and impeaching material. The Court finds that the untimely disclosure, after the trial was underway, resulted in substantial and irreparable harm to the Defendant's case due to defense counsel's inability to properly investigate witnesses and the alleged victim, and to properly explore other trial strategy and theories of defense. The Defendant was deprived of material that would have affected the substance of his opening statement and how defense counsel approached raising reasonable doubt in the jury. Id . The People's Brady violation in this case "unfairly skewed" the case against defendant, who was forced to mount his defenses without the benefit of material exculpatory and impeaching testimony and reports. United states v. Mahaffy, supra . Overall, the People's failure to timely disclose Deputy Muthig's report and Ms. Harris' notes and CPS report, resulted in prejudice to the Defendant which cannot be cured through cross-examination of witnesses or any other remedy imposed by this trial Court to restore confidence in a fair outcome of this trial.
Based on the foregoing, it is therefore
ORDERED that Defendant's motion for sanctions is denied; and it is further
ORDERED that Defendant's motion for a mistrial is granted; and it is further
ORDERED that Defendant's motion for a new trial is granted, said re-trial to be scheduled forthwith.
This shall constitute the Decision and Order of this Court.
DATED: August 6, 2012
Monticello, New York
________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge
and Surrogate
In early July of 2011, Defendant called the Sullivan County Sheriff's Office to report his wife was missing. The Defendant, who works in New York City, returned home from work on July 6, 2011 and found his wife, three children, and all of their belongings and furniture still in the house. Neither the Defendant nor defense counsel were aware a written report had been generated from that call.