THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ERNEST WILLIAMS, Appellant.
Supreme Court, Appellate Division, Third Department, New York
January 31, 2008
47 A.D.3d 1177 | 854 N.Y.S.2d 586
At defendant‘s trial on charges of robbery in the second degree and criminal possession of stolen property in the fourth degree, the victim, a pedestrian, testified that a black male grabbed her pocketbook as he drove by her in a car, dragging her to the ground as he sped away with it. She could not, however, identify defendant as the person who had robbed her. It was the
The next morning, the People were able to produce Flood, but not Kirkley. Supreme Court then denied defendant‘s motion for dismissal and, instead, offered his counsel the opportunity to immediately cross-examine Flood. When counsel stated that he was not going to accommodate the prosecution‘s violations by doing so, the court told him that he could refuse only after Flood was on the stand and the jury was present. As a result, counsel did ask Flood a few additional questions. The court also denied defendant‘s motion to strike Kirkley‘s earlier testimony despite his unavailability because it found the materials regarding him to be immaterial or not inconsistent with his testimony. After the jury found him guilty as charged and he was sentenced, defendant moved to vacate the judgment of conviction pursuant to
While we find little merit in defendant‘s other arguments, we are persuaded that Supreme Court erred in denying his motion to set aside the verdict on the ground that he was substantially prejudiced by the People‘s failure to timely disclose significant Rosario and Brady materials. The Rosario rule, codified in
Here, the record is clear that the People failed to disclose numerous Rosario and Brady materials until after their last witness testified and those materials could have been used to challenge the credibility of crucial prosecution witnesses. As for Flood, the materials indicate that he had previously denied any knowledge of the robbery and claimed that he had been on the telephone with his wife and his car had been stolen. They also call into question Flood‘s claim that he received no benefit from the People for his cooperation in testifying against defendant because he was spared sentencing as a persistent felony offender and his plea apparently satisfied a burglary charge beyond those to which he pleaded guilty. Nonetheless, because the defense was offered a meaningful opportunity to further cross-
We reach a different conclusion, however, with regard to Kirkley. Contrary to Kirkley‘s testimony, the Rosario and Brady materials regarding him included notes of a police officer indicating that Kirkley had reported seeing a black pocketbook in the possession of defendant and Flood at his apartment on the Sunday before the robbery of the victim here and that the pocketbook observed on the afternoon of the robbery had belonged to a different victim because its contents included a “lady‘s sheriff badge.” In addition, the materials reflected that, contrary to his testimony that he was not a receiver of stolen property, Kirkley had participated with Flood in prior robberies and received a share of the items stolen. Further, the materials included an inventory of stolen property recovered from Kirkley‘s apartment that could have been used to challenge his testimony that he was not in possession of any stolen property. Since these belatedly disclosed materials could have been used to impeach the witness who corroborated the testimony of the only person who testified that defendant was the perpetrator of the robbery, and since the defense had accused Flood of the robbery here, their nondisclosure constituted Rosario and Brady violations that substantially prejudiced the defense (see People v Baxley, 84 NY2d at 213; People v Monroe, 17 AD3d at 864). Inasmuch as Kirkley was not made available for further cross-examination, defendant had no meaningful opportunity to use those materials. Moreover, this prejudice was not ameliorated by Supreme Court‘s later instruction that the jury could infer that if Kirkley had been further cross-examined, his credibility would have been “further impeached” and his testimony would have contradicted the People‘s other witnesses. Since the jury was not told in what respect Kirkley would have been impeached or how his testimony would have been different than before, this adverse inference charge was an ineffective sanction for the People‘s untimely disclosure. Accordingly, reversal and a new trial are necessary (see People v Mitchell, 14 AD3d 579, 580 [2005]; People v Janota, 181 AD2d 932, 933-934 [1992]; compare People v Osborne, 91 NY2d 827, 828 [1997]).
Peters, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment and order are reversed, on the law,
Rose, J.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ERNEST WILLIAMS, Appellant.
Supreme Court, Appellate Division, Third Department, New York
January 31, 2008
47 A.D.3d 1177 | 854 N.Y.S.2d 586
At defendant‘s trial on charges of robbery in the second degree and criminal possession of stolen property in the fourth degree, the victim, a pedestrian, testified that a black male grabbed her pocketbook as he drove by her in a car, dragging her to the ground as he sped away with it. She could not, however, identify defendant as the person who had robbed her. It was the
The next morning, the People were able to produce Flood, but not Kirkley. Supreme Court then denied defendant‘s motion for dismissal and, instead, offered his counsel the opportunity to immediately cross-examine Flood. When counsel stated that he was not going to accommodate the prosecution‘s violations by doing so, the court told him that he could refuse only after Flood was on the stand and the jury was present. As a result, counsel did ask Flood a few additional questions. The court also denied defendant‘s motion to strike Kirkley‘s earlier testimony despite his unavailability because it found the materials regarding him to be immaterial or not inconsistent with his testimony. After the jury found him guilty as charged and he was sentenced, defendant moved to vacate the judgment of conviction pursuant to
While we find little merit in defendant‘s other arguments, we are persuaded that Supreme Court erred in denying his motion to set aside the verdict on the ground that he was substantially prejudiced by the People‘s failure to timely disclose significant Rosario and Brady materials. The Rosario rule, codified in
Here, the record is clear that the People failed to disclose numerous Rosario and Brady materials until after their last witness testified and those materials could have been used to challenge the credibility of crucial prosecution witnesses. As for Flood, the materials indicate that he had previously denied any knowledge of the robbery and claimed that he had been on the telephone with his wife and his car had been stolen. They also call into question Flood‘s claim that he received no benefit from the People for his cooperation in testifying against defendant because he was spared sentencing as a persistent felony offender and his plea apparently satisfied a burglary charge beyond those to which he pleaded guilty. Nonetheless, because the defense was offered a meaningful opportunity to further cross-
We reach a different conclusion, however, with regard to Kirkley. Contrary to Kirkley‘s testimony, the Rosario and Brady materials regarding him included notes of a police officer indicating that Kirkley had reported seeing a black pocketbook in the possession of defendant and Flood at his apartment on the Sunday before the robbery of the victim here and that the pocketbook observed on the afternoon of the robbery had belonged to a different victim because its contents included a “lady‘s sheriff badge.” In addition, the materials reflected that, contrary to his testimony that he was not a receiver of stolen property, Kirkley had participated with Flood in prior robberies and received a share of the items stolen. Further, the materials included an inventory of stolen property recovered from Kirkley‘s apartment that could have been used to challenge his testimony that he was not in possession of any stolen property. Since these belatedly disclosed materials could have been used to impeach the witness who corroborated the testimony of the only person who testified that defendant was the perpetrator of the robbery, and since the defense had accused Flood of the robbery here, their nondisclosure constituted Rosario and Brady violations that substantially prejudiced the defense (see People v Baxley, 84 NY2d at 213; People v Monroe, 17 AD3d at 864). Inasmuch as Kirkley was not made available for further cross-examination, defendant had no meaningful opportunity to use those materials. Moreover, this prejudice was not ameliorated by Supreme Court‘s later instruction that the jury could infer that if Kirkley had been further cross-examined, his credibility would have been “further impeached” and his testimony would have contradicted the People‘s other witnesses. Since the jury was not told in what respect Kirkley would have been impeached or how his testimony would have been different than before, this adverse inference charge was an ineffective sanction for the People‘s untimely disclosure. Accordingly, reversal and a new trial are necessary (see People v Mitchell, 14 AD3d 579, 580 [2005]; People v Janota, 181 AD2d 932, 933-934 [1992]; compare People v Osborne, 91 NY2d 827, 828 [1997]).
Peters, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment and order are reversed, on the law,
Rose, J.
