People v. Armer

• Decision Date: 24 April 1986
• Citation: 501 N.Y.S.2d 203,119 A.D.2d 930
• Parties: The PEOPLE of the State of New York, Respondent, v. Matthew L. ARMER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 203

501 N.Y.S.2d 203

119 A.D.2d 930

The PEOPLE of the State of New York, Respondent, v. Matthew L. ARMER, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 24, 1986.

David C. Leven (Ruth N. Cassell, of counsel), Prisoners' Legal Services of N.Y., New York City, for appellant.

Paul W. Elkan, Dist. Atty. (Linden D. Summers, III, of counsel), Cooperstown, for respondent.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and LEVINE, JJ.

MIKOLL, Justice.

Appeal, by permission, from an order of the Supreme Court at Special Term (Fischer, J.), entered April 6, 1983 in Otsego County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of murder in the second degree, after a hearing.

In June 1951, Corporal Arthur Diffendale of the State Police stopped a cattle truck bearing a cow in the City of Oneonta, Otsego County. As the officer left his police vehicle and walked toward the stopped truck, the driver opened the driver's side door, stepped out and shot the officer, causing his death. The assailant fled in the cattle truck which was later found abandoned. Ten days later, defendant was arrested. Thereafter, he was indicted and charged with two counts of murder in the first degree and four counts of felony murder.

In September 1951, defendant was convicted in Supreme Court upon a plea of guilty to murder in the second degree which was entered during trial. He was sentenced to 60 years to life imprisonment. ^* Sixteen witnesses testified for the prosecution prior to defendant's entry of his plea. None of them positively identified defendant as the murderer.

The procedural history of this case is complex. In 1976 defendant made a motion pursuant to CPL 440.10 for postconviction relief vacating the judgment of conviction. Due to reasons not relevant to the matter under consideration, hearings were not held until 1980, at which time defendant asserted his innocence and argued, inter alia, (1) that his plea was coerced by massive adverse publicity and by the prosecution's withholding of material exculpatory evidence, (2) that the guilty plea was not knowingly and intelligently made because the trial court failed to give defendant notice of the elements of the crime to which he pleaded and to inquire into the factual circumstances underlying the plea, and (3) that there was a lack of jurisdiction in both the Grand Jury and the trial court to indict and convict defendant, respectively. Special Term denied defendant's application to vacate the judgment in a 66-page decision. This appeal, taken by permission of a Justice of this court, ensued.

Among the errors urged upon us by defendant is the contention that his plea was coerced when the prosecution purportedly failed to disclose the identity of a woman who had twice identified someone other than defendant in a police lineup as the perpetrator of the crime.

At the CPL 440.10 hearing, defendant's testimony indicated that a woman had twice identified a person to his left during the lineup and that, after that person was removed from the lineup, the woman was brought back, placed in front of defendant and said, "That is not the man." Defendant stated that he asked a person he thought was the District Attorney who the woman was and was only told, "You will find out later." Defendant's attorney, Harry O. Lee, also testified at the hearing. Lee indicated that defendant had told him of the misidentification and that he and his cocounsel attempted to learn the identity of the witness. Lee said he asked the special counsel to the District Attorney for the witness's identity and was told, "What do you expect me to do, give away my case?", or words to that effect. Apparently no formal demand or motion to the trial court was made for the identification information. Lee also stated that he asked for the names of anybody who failed to identify defendant. After trial, the District Attorney, according to newspaper accounts, stated, "Our only two eyewitnesses were a young boy and a woman who twice misidentified defendant before picking him."

Special Term refused to apply Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, finding that defendant had waived the application of recent law on the duty to disclose exculpatory evidence and was relying exclusively on the law as it existed in 1951. Special Term held that under that law, the prosecution had no obligation to disclose such evidence. Under Brady, the prosecution has a duty to disclose evidence that is exculpatory and material to the issue of guilt or punishment (United States v. Bagley, 473 U.S. 667, ---, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481; Brady v. Maryland, supra, p. 87, 83 S.Ct. p. 1197). We determine that under the principles of retroactivity, the Brady rule should be applicable here (see, Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579; see also, United States v. Wilkins, 326 F.2d 135, 2nd Cir.). Although Special Term refused to apply Brady and its progeny to the instant case because of the concession by defendant's counsel that only case law as of 1951 be applied, such concession on a purely legal issue is not controlling on this court.

Under United States v. Bagley (supra), in order to show that evidence is material it must be shown that had the exculpatory information been disclosed, there is a reasonable probability that the outcome would have been different. Thus, the question here is whether it is reasonably probable that defendant would not have pleaded guilty during the trial if he had received the information that the witness made the misidentification. In the instant case, where admittedly defendant knew of the misidentification and had informed his attorneys of it, although the name of the witness was unknown, the answer must be in the negative. Defendant knew of the misidentification and chose to plead guilty anyway. However, the answer to the question of whether there is reasonable probability that defendant would not have pleaded guilty had he been provided with the identity of all witnesses who misidentified him requires further analysis.

According to the testimony of defendant and his lawyer at the CPL 440.10 hearing, the reasons for pleading guilty during trial included a fear of the death penalty and adverse publicity, a belief that the trial court lacked jurisdiction and the whole proceeding...