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MOTION TO VACATE DEFENDANT’S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT).

The Second Department reversed the vacation of defendant's conviction by the motion court, finding that the evidence which defendant alleged had not been turned over to the defense was not Brady material:

The defendant was charged with murder in the second degree, among other crimes, in connection with the shooting death of Tracey Thomas on October 22, 1993. Thomas was shot and killed as he sat in his car outside a game room operated by the defendant, who was known as “Pike.”

The evidence at trial, which was conducted in 1998, included the testimony of two eyewitnesses who identified the defendant as the shooter. One eyewitness to the shooting, Marilyn Connor, testified that she heard a gunshot and saw a spark coming from the defendant, who was standing in front of Thomas. Connor stated that she had seen the defendant “[o]nce or twice” before. The other eyewitness, Shawn Newton, testified that the defendant exited the game room, approached Thomas's car, and shot Thomas in the chest. Newton stated that he had known the defendant “all [his] life.” * * *

The nondisclosure of the DOCCS record reflecting Newton's apparent suicide attempt did not constitute a Brady violation, inasmuch as the information contained in that record was not favorable to the defense. As set forth in the DOCCS record, Newton, who was observed in the process of tying a bed sheet around a radiator pipe, reported that he was “stressed and [did] not want to go to court in fear of [the] safety of himself and family,” and that he “fears [the defendant].” The DOCCS record further indicated that Newton was “[a]ssured that this [would] be noted and that there should be no contact between him and enemy as well as enemy's family.” Thus, the DOCCS record attributed the apparent suicide attempt to Newton's fear of the defendant and was therefore not favorable to the defense. …

Furthermore, that the prosecutor had obtained a material witness order to secure Connor's testimony did not constitute Brady material because that information was not exculpatory … . To the contrary, the record indicates that Connor's absence was due to her fear of testifying against the defendant. …

We next turn to the nondisclosure of the Damiani orders, which are orders of the Supreme Court, Kings County, pursuant to which custody of an inmate, with the inmate's consent, is delivered to the police department to be interviewed by the District Attorney's Office ,,, [C]ontrary to the Supreme Court's determination, the orders did not satisfy the materiality standard. People v Spruill, 2018 NY Slip Op 06041, Second Dept 9-12-18

CRIMINAL LAW (BRADY MATERIAL, MOTION TO VACATE DEFENDANT'S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, BRADY MATERIAL,  MOTION TO VACATE DEFENDANT'S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT))/BRADY MATERIAL (CRIMINAL LAW, MOTION TO VACATE DEFENDANT'S CONVICTION SHOULD NOT HAVE BEEN GRANTED, EVIDENCE ALLEGEDLY WITHHELD FROM THE DEFENSE WAS NOT BRADY MATERIAL (SECOND DEPT))

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