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SURVEILLANCE VIDEO CONSTITUTED BRADY MATERIAL WHICH COULD HAVE AFFECTED THE OUTCOME OF THE TRIAL, THE PROSECUTOR HAD SEEN THE VIDEO BUT TOLD THE JURY NO VIDEO EXISTED, CONVICTION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the People’s failure to turn over to the defense a surveillance video which captured people (not the defendant) present at the time the victim was shot, as well as the victim falling, required a new trial. The prosecutor had seen the video and considered it irrelevant. In her summation, the prosecutor said there was no video of the incident:

In New York, where the defense “did not specifically request the information, the test of materiality is whether there is a reasonable probability that had it been disclosed to the defense, the result would have been different'” … . Defendant concedes that the “reasonable probability” standard applies here. In determining materiality, the “question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence” … . The “defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict” … . Defendant need only show that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict” … . * * *

It requires no frame-by-frame review to grasp that the video would have become the focal point of defendant’s trial. It would have set the scene of the murder, identified other potential witnesses, served to impeach eyewitness testimony, and provided a basis for an argument that other suspects might have been involved in the shooting. Instead of playing that role at trial, the video was withheld from the defense and the jury was told it did not exist. The aggregate effect of the suppression of this evidence undermines confidence in the verdict and therefore defendant is entitled to a new trial. People v Ulett, 2019 NY Slip Op 05060, CtApp 6-26-19

 

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