Opinion
233-2012
05-28-2013
People of the State of New York, v. Paul Novak, Defendant.
Gary Greenwald, Esq. Greenwald Law Offices Attorney for Defendant Paul Novak Hon. James R. Farrell Attorney for the People
Gary Greenwald, Esq.
Greenwald Law Offices
Attorney for Defendant Paul Novak
Hon. James R. Farrell
Attorney for the People
Frank J. LaBuda, J.
Pursuant to this Court's decision from the Bench on May 6, 2013, on Defendant's omnibus motion, with written decision to follow, the Court issues the within decision and order to supplement the decision and order dated May 17, 2013. There are no substantive changes to the original May 6, 2013, decision from the Bench or the decision and order dated May 17, 2013.
In compliance with this Court's directive from the bench on May 6, 2013, after lengthy oral argument on the omnibus motion, the People are hereby ordered to provide Defendant's counsel with legible copies of all documents subject to discovery, in particular, the notes produced by any and all law enforcement officers involved in this case. Providing illegible copies of notes does not satisfy the discovery obligations of CPL §240. Providing illegible copies of field notes and police reports is the same as failing to comply with discovery. If the People do not have legible copies of documents or cannot provide copies that are legible, then they shall arrange for the person who prepared said notes or records to meet with defense counsel and decipher the documents already produced, or provide transcripts of the illegible parts of notes and records.
The People shall also provide Defendant with a copies of Michelle LaFrance's 2008 and 2012 statements to law enforcement personnel. Brady v. Maryland, 373 US 83 [1963]. The People strongly argue they are under no obligation to disclose the 2012 statement, in particular, because it is only subject to disclosure as Rosario material; it is the People's position that the 2012 statement is truthful and therefore the 2008 statement is the only one that is untruthful and inconsistent. People v. Rosario, 9 NY2d 285 [1961].This Court disagrees.
The United States Supreme Court 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. "When the reliability of a given witness may well be determinative of guilt or innocence,'non-disclosure of evidence affecting credibility falls within [Brady]." Giglio v. United States, 405 US 150, 154 [1972], citing, Napue v. Illinois, 360 US 264 [1959].
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]; see also, People v. Frantz, 57 AD3d 692, 693 [2nd Dept. 2008]. If the evidence is favorable to the defendant because it is exculpatory or impeaching in nature, was suppressed by the prosecution, 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].
In the case at bar, Ms. LaFrance's 2008 statement is clearly exculpatory in and of itself, as it provides an alibi for Defendant. While the People take the position this statement is not truthful, and the defense maintains it is true, it is patently Brady material and must be disclosed in its entirety.
Regarding Ms. LaFrance's 2012 statement: This Court is confronted by two conflicting statements, the first of which is exculpatory, the second of which is inculpatory, and no one, other than Ms. LaFrance, knows which one is true and which one is false; without examining both statements and conducting his own investigation, Defendant cannot determine the veracity of either statement and how each statement affects the other. People v. Johnson, 2001 NY Slip Op 40157(U), 2001 WL 1263380 [Sup. Ct Bronx Co. 2001]. If the 2008 statement did not exist, then the People's argument that the 2012 statement is Rosario material not yet subject to disclosure would be correct. The 2008 statement does exist, however, and therefore, the 2012 statement cannot be viewed in a vacuum. In the context of Brady it matters not which statement was made first; it matters that taken together, they are more than mere tools for impeachment of a witness; as a package they are exculpatory, especially because it is unknown which statement is true and which one is false, and how much credibility a jury will afford each statement. Id; Napue v. Illinois , 360 US at 271 . In addition, examination and analysis of both statements may impact defense strategy, voir dire of a jury, or lead defense counsel to other exculpatory information. People v. Johnson, 2001 WL 1263380, at 4. It is inarguable that the two conflicting statements impeach the credibility of this prosecution witness whose testimony will undoubtedly be very determinative of guilt or innocence in this case. People v. Owens, 70 AD3d 1469 [4th Dept. 2010]. "The suppression of such evidence under any circumstance amounts to a denial of due process." People v. Johnson , 2001 WL 1263380, at 5.
The reliability of Ms. LaFrance as a witness is significant to both the People's case and the Defendant's defense. Giglio v. United States, supra . While in 2008 she provided an alibi for Defendant, in 2012, she completely changed her story, stating Defendant was not with her during the time period in question. What she told the police and prosecution in 2012 that now impeaches her first statement to the police is essential to understanding what is contradictory to her 2008 statement, and Defendant must have the opportunity to examine and compare both statements to aid in determining the truthfulness of each statement and how they affect each other. In fairness, both the People and Defendant must have the opportunity to examine and compare both statements in preparation for trial, as it will ultimately be up to the jury to determine the credibility of each statement. Regardless of which of the statements is true or false, if the false statement or testimony can "in any reasonable likelihood" affect the judgment of the jury, it must be disclosed. Napue v. Illinois , 360 US at 271 .
It must also be noted that the second (2012) statement is not privileged, and would be clearly discoverable as Rosario material prior to trial in any event. There is no doubt the credibility of Ms. LaFrance's testimony at trial and previous statements will weigh heavily on the minds of the jury, one way or the other, when considering whether Defendant is guilty, People v. Alonso , supra , and therefore, may be determinative of guilt or innocence in this case. People v. Frantz , supra; see also, Giglio v. United States, supra .
Based on the foregoing, this Court's previous Decision and Order directing disclosure of legible documents, as well as Ms. LaFrance's 2012 statement, continues, as do
all of the other orders contained therein. The People are hereby directed to comply with said order on or before May 31, 2013.
This shall constitute the Decision and Order of this Court.
DATED:May 28, 2013
Monticello, New York
________________________________________________
Hon. Frank J. LaBuda
Sullivan County Court Judge & Surrogate
The Court denied Defendant's motion, pursuant to CPL §210.30(2), for Defendant's inspection of the Grand Jury minutes and dismissal of the indictment. The Court examined the Grand Jury minutes in camera and determined there was legally sufficient evidence ro support the charges in the Indictment. CPL §210.30(2), (3).