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Even If Information About Prosecution Witness’ Recent Drug Sales Had Been Withheld in Violation of Brady/Giglio, the Withheld Information Was Not “Material” In That It Would Not Have Affected the Outcome

The First Department, in a full-fledged opinion by Justice Richter, determined that there was insufficient evidence that a Brady/Giglio violation had occurred and that, assuming there was a violation, it would not have affected the verdict.  The underlying question was whether the prosecution was aware a cooperating witnesses had lied on the stand when he testified he no longer sold drugs:

…[D]efendant’s principal claim is that the People violated their obligations under Brady v Maryland (373 US 83 [1963]) and its progeny. It is well established that a defendant has the right, under both the State and Federal Constitutions, to discover favorable evidence in the People’s possession that is material to guilt or punishment … . Furthermore, the People’s Brady obligations apply to both exculpatory and impeachment evidence (see Giglio v United States, 405 US 150, 154 [1972]). Such evidence, however, “is subject to Brady disclosure only if it is within the prosecution’s custody, possession, or control” … . “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” … . * * *

It is axiomatic that there can be no Brady violation unless the suppressed information is “material” … . Where, as here, a defendant has made a specific request for the undisclosed information, “the materiality element is established provided there exists a reasonable possibility that it would have changed the result of the proceedings” … . Under this standard, even if the information about [the witness’] recent drug sales had been disclosed before the end of trial, there is no reasonable possibility that the verdict would have been different. People v Stilley, 2015 NY Slip Op 02715, First Dept 3-31-15

 

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