Summary
vacating 1986 conviction where prosecution failed to disclose police report that summarized interview with prosecution's principal witness
Summary of this case from Buari v. City of New YorkOpinion
January 4, 1994
Appeal from the Supreme Court, Bronx County (Lawrence H. Bernstein, J.).
In 1986 the defendant was convicted, after a jury trial, of two counts of murder in the second degree arising from the shooting deaths of Jimmy Clark on July 31, 1984 and Kevin Tabon on August 1, 1984. Defendant's conviction was affirmed by this Court without opinion (People v. White, 131 A.D.2d 983, lv denied 70 N.Y.2d 878). While serving his sentence, the defendant made Freedom of Information Law requests (Public Officers Law §§ 84-90) to the Police Department and the Bronx County District Attorney's Office, in response to which he received from the Police Department a Complaint Follow-up Report, known as a DD-5, which summarized an interview with Kevin Eybergen, a principal prosecution witness against him at trial. The DD-5, which had been omitted from the Rosario material provided to the defendant at trial, contained material significantly inconsistent with Eybergen's trial testimony. That document also contradicted representations made by the People in successfully opposing the defendant's motion for a Wade hearing prior to trial.
As here pertinent, the DD-5 reported Eybergen stating to a detective shortly after the incident that the person who shot Clark was unknown to him, and that he could not identify the shooter. At trial, Eybergen testified to knowing the defendant vaguely and seeing him chasing Clark down the street while firing a weapon at him. The defendant was linked to the second murder, of Mr. Tabon, in significant part through ballistics evidence that the gun used to kill Tabon was the same weapon used to kill Clark. Prior to trial, based upon the People's representation that the defendant was known to Eybergen, the defendant's motion for a Wade hearing, seeking to suppress Eybergen's identification testimony as the unduly suggestive result of exposure to a photo array, was denied under the authority of People v. Gissendanner ( 48 N.Y.2d 543).
In 1992, after discovery of the previously undisclosed DD-5, the defendant brought a CPL 440.10 motion to vacate his conviction, alleging Rosario and Brady violations based upon the People's failure to turn over the DD-5 to the defense and, additionally, arguing that he should be granted an identification hearing. The trial court denied the motion. We concur with the defendant in both respects, and grant the motion.
The defendant was clearly entitled to discovery of the DD-5 reporting the prior statements of witness Eybergen (People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866; CPL 240.45 [a]). In order to succeed on a motion to vacate a conviction pursuant to CPL 440.10 (1) (f) after direct appeal has been exhausted, a defendant "must demonstrate a reasonable possibility that the failure to disclose the Rosario material contributed to the verdict" (People v. Jackson, 78 N.Y.2d 638, 649). We view the contradiction between the witness's testimony at trial and his prior statement to the detective, which the DD-5 in question documents but which was unknown to defense counsel at trial, as significant enough that there was a reasonable possibility that ignorance of it contributed to the verdict.
Insofar as the previously undisclosed DD-5 represents material that the defendant was entitled to under Brady v. Maryland ( 373 U.S. 83), where, as here, a specific discovery request was made by the defendant, a motion to vacate judgment under CPL 440.10 (1) (f) is evaluated under the same "`reasonable possibility'" standard applicable to Rosario violations (People v. Vilardi, 76 N.Y.2d 67, 77; People v. Jackson, supra, at 649). Thus, the defendant is entitled to vacatur of his conviction of murdering Clark upon this ground as well, and he is further entitled to a Wade hearing upon remand (see generally, People v. Rodriguez, 79 N.Y.2d 445).
Since the defendant was tied to the Tabon murder only by an excited utterance of the victim and ballistics evidence that the gun used to murder Tabon was the same as that used to murder Clark, and we find a reasonable possibility that the failure to disclose the DD-5 contributed to defendant's conviction of the murder of Clark, defendant's conviction of murdering Tabon must be reversed also.
Concur — Murphy, P.J., Carro, Ellerin and Nardelli, JJ.