Summary
holding that statement obtained by police from individual implicating three men other than defendants as the perpetrators was Brady material even though police considered the statement unreliable
Summary of this case from Watson v. GreeneOpinion
October 26, 1987
Appeal from the Supreme Court, Queens County (Browne, J.).
Ordered that the order dated February 12, 1986 is reversed, on the law, the defendants' motion to vacate the judgments, as amended, is granted, the judgments, as amended, are vacated, a Wade hearing is directed with respect to the witness Nixon's identification of the defendant Craig, and a new trial is ordered; and it is further,
Ordered that the appeals from the judgments, as amended, are dismissed as academic, in light of the determination of the appeals from the order.
We find that based upon the evidence adduced at the hearing held in connection with the defendants' postjudgment motion (CPL 440.10), the prosecution did violate the defendants' constitutional right to be informed of exculpatory information known to the State (see, Brady v. Maryland, 373 U.S. 83), as well as the defendants' statutory right to be provided with prior written or recorded statements made by prosecution witnesses (see, People v. Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, 15 N.Y.2d 765; CPL 240.45).
Specifically, it was established that during the investigation of the crimes of which the defendants stand convicted, the police obtained a statement from a certain individual who directly implicated three men other than the defendants as the perpetrators. Even if the prosecution had valid reasons to consider this witness to be unreliable, it should nonetheless have provided the defense with this important exculpatory information which was clearly Brady material (see, People v Fein, 18 N.Y.2d 162, 172, appeal dismissed and cert denied 385 U.S. 649). Additionally, we note that that individual provided the defendants with an affidavit supporting their postjudgment motion and presumably would have been willing to testify on their behalf at the trial.
The Court of Appeals has adopted the rule announced in United States v. Bagley ( 473 U.S. 667) that "constitutional error occurs only if the evidence which was not disclosed was material in the sense that `there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different'" (People v. Chin, 67 N.Y.2d 22, 33, quoting from United States v. Bagley, supra, at 682 [emphasis added]; see also, People v. Alongi, 131 A.D.2d 767). In the present case, there were three witnesses who identified the defendants as the perpetrators, two of whom had seen them on prior occasions. In addition, another witness for the prosecution testified as to having overheard the defendants discussing their participation in the crime shortly after the event. Nevertheless, we find that there is a reasonable probability that the result herein would have been different if the jury had heard testimony from a witness who, in effect, would have identified three other men as the actual perpetrators. At the very least, the defendants in this case, who were evidently unaware that this witness had given such exculpatory information, were "deprived of the opportunity to make an informed decision regarding the trial strategy that would have been in [their] best interests to pursue" (People v. Smith, 127 A.D.2d 864, 866).
In addition to the Brady violation, the evidence also showed that the prosecution failed to satisfy its obligations imposed pursuant to CPL 240.45, which codified the rule of People v Rosario (supra). For example, the People did not turn over certain reports concerning an identifying witness's statements to a police polygraph examiner. Moreover, this same witness had been interviewed by a detective prior to trial, and had given information (including the fact that he had observed four perpetrators) at variance with his testimony at trial. The handwritten notes made with respect to this interview were not furnished to the defense. The People assert that because this witness made a similar statement on another occasion to other officers, and that separate statement was furnished to the defense, no Rosario error occurred. However, if a witness makes substantially the same statement on two separate occasions, and each statement is recorded, then each statement should be considered Rosario material. "Statements are not the `duplicative equivalent' of previously produced statements * * * just because they are `harmonious' or `consistent' with them" (People v. Ranghelle, 69 N.Y.2d 56, 63). Further, these Rosario violations may not be considered harmless (see, People v Ranghelle, supra; People v. Perez, 65 N.Y.2d 154, 160; People v Consolazio, 40 N.Y.2d 446, 454, on remittitur appeal dismissed 53 A.D.2d 903, cert denied 433 U.S. 914).
Accordingly, the defendants' postjudgment motion should have been granted and the defendants are entitled to a new trial (see, CPL 440.10 [f]).
While the appeals from the judgments, as amended, are academic in light of our determination, we find that a reversal would have been warranted based upon certain trial errors. Particularly, as we have previously held, certain language used by the trial court in explaining to the jury the concept of reasonable doubt was improper (see, People v. La Rosa, 112 A.D.2d 954; see also, People v. Morris, 100 A.D.2d 600). Moreover, the trial court erroneously limited the cross-examination of certain prosecution witnesses to only the facts that they had been convicted of certain crimes (see, People v. McGee, 68 N.Y.2d 328, 332). Cross-examination should have been allowed concerning the underlying facts, as well as prior bad or immoral acts (see, People v. Allen, 67 A.D.2d 558, affd 50 N.Y.2d 898).
Finally, we note that prior to any retrial, a Wade hearing should be held on the issue of whether the prosecution witness Nixon should be permitted to make an in-court identification of the defendant Craig. It is not clear from the record whether or not Nixon made a photographic identification of Craig. If she did, the court should determine whether that identification was impermissibly suggestive and if so, whether there is an independent basis for an in-court identification. Lawrence, J.P. Weinstein, Kooper and Sullivan, JJ., concur.