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PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction, based upon the People’s failure to provide exculpatory information and correct a witness’s testimony, required reversal and a new trial. A witness, Avitto, called by the People testified defendant made inculpatory statements (re: the murder charge) while they were in jail together. At trial the Avitto testified he received no benefit from the People in exchange for his testimony. However, after a hearing, it appeared there had been an informal agreement to provide Avitto with favorable treatment in return for his testimony. Avitto was facing a serious charge and needed to complete a drug program to qualify for a shorter sentence. Even though Avitto was not doing well in the drug program, and in fact had left the program, he was allowed to stay out of jail and continue to attempt to complete the program:

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The evidence at issue here—Avitto’s immediate contact with the police … , after leaving the drug program, his subsequent court appearance with detectives and the prosecutor … , when he was released on his own recognizance, as well as his ability to remain out of custody despite poor progress in his drug treatment and numerous violations—was of such a nature that the jury could have found that, despite Avitto’s protestations to the contrary, “there was indeed a tacit understanding” between Avitto and the prosecution that he would receive or hoped to receive a benefit for his testimony … . This evidence was material in nature, and its nondisclosure prejudiced the defendant, as it constituted impeachment material and tended to show a motivation for Avitto to lie … .

Accordingly, the prosecutor was not only required to disclose this evidence to the defendant, but was further required to clarify “the record by disclosing all the details of what had actually transpired” between the District Attorney’s office and Avitto … . The prosecutor further had the obligation to correct any misleading or false testimony given by Avitto at trial regarding his contact with detectives and the prosecutor, and his progression in drug treatment … . These errors were further compounded when the prosecutor reiterated and emphasized Avitto’s misleading testimony during summation … .  People v Giuca, 2018 NY Slip Op 00846, Second Dept 2-7-18

CRIMINAL LAW (BRADY MATERIAL, PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, BRADY MATERIAL PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/BRADY MATERIAL (CRIMINAL LAW, , PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/PROSECUTORIAL MISCONDUCT (CRIMINAL LAW, BRADY MATERIAL PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))

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