People v. Bond

• Citation: 713 N.Y.S.2d 514,735 N.E.2d 1279,95 N.Y.2d 840
• Court: New York Court of Appeals
• Decision Date: 06 July 2000
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>BRIAN BOND, Appellant.

95 N.Y.2d 840

735 N.E.2d 1279

713 N.Y.S.2d 514

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.BRIAN BOND, Appellant.

Argued June 6, 2000.Decided July 6, 2000.

Joel B. Rudin, New York City, for appellant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Michael Gore and Leonard Joblove of counsel), for respondent.

Before: Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur in memorandum.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be reversed, and a new trial ordered.

Defendant was convicted of murder in the second degree and related charges for the November 1, 1991 shooting death of Samuel Benguche in the courtyard of the Brownsville Houses in Brooklyn. In January 1992, defendant made an omnibus motion requesting disclosure of prior inconsistent statements or changed testimony of the People's witnesses and for other relief. Prior to trial in November 1994, the People, contending that defendant personally caused Benguche's death, disclaimed any reliance upon an acting in concert theory. Although a second bystander was shot, the trial court precluded any reference to the second victim.

The People's case included the testimony of Leonora Moore and Ricardo Williams who saw defendant and Jabar Washington point similar looking guns toward Benguche and heard multiple shots but did not see the actual shooting. Both Leonora Moore and Ricardo Williams identified a number of people who were at the crime scene; Carmen Green was not among them (defendant and one of his witnesses would later testify that Carmen Green was not present during the shooting).

On the eighth day of trial, the prosecution requested a continuance to locate additional witnesses. When the trial resumed, the prosecution produced Carmen Green, who had been arrested on a material witness order and held over the weekend. Green, an admitted crack addict, testified that she saw defendant pull out a gun, point and shoot it at Benguche. She added, critically, that when the detectives had questioned her niece, Leonora Moore, at her apartment on the night of the shooting they did not ask her any questions; they were talking to her niece.

During closing argument, defense counsel contended that the evidence was inconclusive as to who had fired the fatal shot. Pointing out that neither Leonora Moore nor Ricardo Williams had seen the actual shooting, defense counsel concentrated his argument on the testimony of the only People's witness who claimed to have done so, the "star witness" for the prosecution, Carmen Green. The defense attacked Green as an admitted crack addict and questioned why she would wait until the trial before giving information about the crime. The prosecutor did not disagree that Green was his "star" witness and argued the credibility and importance of Green's testimony in his closing statement. After two full days of deliberation, the jury convicted defendant of depraved indifference murder, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

Almost a year later, defendant brought a CPL article 440 motion seeking to vacate the conviction due to a variety of Brady and Rosario violations, ineffective assistance of counsel and the denial of his right to be present at the material witness hearing concerning Carmen Green. Supreme Court denied defendant's motion in part but granted a hearing to determine whether Carmen Green previously told the police that she did not witness the shooting and whether the People promised to relocate Green and provide her with public assistance, matters which were never disclosed to the defense at trial.

At the...