People v. Bottom

• Citation: 76 Misc.2d 525,351 N.Y.S.2d 328
• Parties: The PEOPLE of the State of New York v. Anthony BOTTOM et al., Defendants.
• Decision Date: 04 January 1974
• Court: United States State Supreme Court (New York)

Page 328

351 N.Y.S.2d 328

76 Misc.2d 525

The PEOPLE of the State of New York v. Anthony BOTTOM et al., Defendants.

Supreme Court, Trial Term, New York County, Part XXX.

Jan. 4, 1974.

Frank S. Hogan, Dist. Atty., New York Co. by Robert Tannenbaum, and John F. Keenan, Asst. Dist. Attys., for the People.

William M. Kunstler, New York City, for defendant, Anthony Bottom.

Albert Washington, defendant pro se.

William Mogulescu, New York City, for defendant Francisco Torres.

Robert Bloom, New York City, for defendant Gillbert Torres.

BURTON B. ROBERTS, Justice:

This is an application by defendants for an order directing the District Attorney to furnigh them with certain police and prosecution files prior to trial under the authority, it is claimed, of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

Defendants have been indicted for the double murder of two New York City police officers. A pre-trial 'omnibus' defense motion before another Justice made the standard general demand that the prosecution turn over evidence favorable to the defense, pursuant to the Brady rule. In reply came the customary statement that the District Attorney's office was aware of its obligation and would comply with the law. The court's decision, routine as well, was a formal direction to the People to disclose any such material. Conventionality ended, however, when an assistant district attorney submitted an affidavit containing the following information:

'Two people, one of whom has recanted, and the other of whom has disappeared, once claimed they saw another man not one of these defendants near the scene of the killings with a pistol. This other man could not have been one of the killers.'

Defendants thereupon moved for disclosure of the names and addresses of the individuals referred to. The People complied in their answering papers, which stated:

'At one time Terry Grant of 312 East 90th Street, New York City, and Michael Harris of 111--23 131st Street, Queens, told the police that they saw one Jerry Baker of 203 West 111th Street, New York City with a gun near the scene of this vicious crime. They have both recanted under oath and now state that Baker was not seen at or near the place of the murders.'

Now comes the instant motion before me, seeking:

'All statements or police forms or reports which reflect the statements or investigation of the statements of Terry Grant and Michael Harris regarding their naming one Jerry Baker as the perpetrator of this act and reflecting the circumstances of their recantation under oath.'

This the People oppose on the grounds that the prosecution has fully complied with the requirements of Brady and that the requested items are non-discoverable 'exempt property' under CPL § 240.10 and § 240.20.

The well-known holding of Brady v. Maryland is that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' (373 U.S. 83 at p. 87, 83 S.Ct. 1194 at p. 1196; Moore v. Illinois, 408 U.S. 786, 794, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706.) Unlike the situation in the case at bar, however, Brady itself was a motion for post-trial review of the prosecution's conduct upon an allegation that certain favorable evidence had been suppressed. The doctrine also developed in the context of such postconviction proceedings. (United States v. White, 5 Cir., 450 F.2d 264; see, e.g., cases cited in Giles v. Maryland, 386 U.S. 66, 73, 87 S.Ct. 793, 17 L.Ed.2d 737.) This request for disclosure raises the less-celebrated issue of the significance of Brady in a pre-trial setting.

As a discernible result of the post-trial nature of its evolution, much of the existing authority--which is almost all federal--declines to impose a pre-trial duty on the prosecutor or to recognize a corresponding defense remedy or concomitant trial court supervisory function in furtherance of the Brady principle prior to trial. (E.g., United States v. Cole, 8 Cir., 449 F.2d 194; United States v. Moore, 6 Cir., 439 F.2d 1107; United States v. Evanchik, 2 Cir., 413 F.2d 950; United States v. Zive, D.C., 299 F.Supp. 1273; United States v. Manhattan Brush Co., 38 F.R.D. 4 (S.D.N.Y.).) The rationale given is that the Brady holding merely forbids 'suppression', interpreted as a standard of performance reviewable only against the background of a trial, and therefore did not create an affirmative obligation to turn over favorable material at any stage prior to the trial. It is also reasoned that Brady material is not a class of information available to the defense under rules of pre-trial discovery and is therefore unobtainable prior to trial. Illustrative is the following passage, which is also from the only New York case my research has disclosed to have commented on a request for pre-trial Brady disclosure:

'Pre-trial discovery of exculpatory evidence is * * * not available under the statute. Suppression of such evidence is certainly a violation of due process and rights of the defendant (citing Brady), yet Federal jurisdiction has declined to extend that case to a point where it permitted a new disclosure device. In United States v. Zirpolo, (D.C., 288 F.Supp. 993), dealing with the subject of disclosure, the court said the Brady rule was merely a cogent reminder that the prosecutor must first seek justice, not conviction and that the appropriate remedies are available to correct abuse that arises out of suppression. In United States v. Cobb, D.C., 271 F.Supp. 159, pre-trial disclosure of exculpatory matter was denied. It was there pointed out that what is 'exculpatory' is often a matter of differing opinions and that the conflict can only be resolved in the light of the other evidence at trial. Declaring that there was an impossibility of evolving a practicable rule as to discovery of such evidence, the court stated the conscience of the prosecutor must be allowed to operate subject to the sanction of a mistrial or reversal if he delays the disclosure of that which is obviously exculpatory. This court fells that there must be reliance on the presumption that the prosecutor will perform his duty not to suppress.' (People v. McMahon, 72 Misc.2d 1097 at pp. 1099--1100, 341 N.Y.S.2d 318, 320.)

The instant case provides a suitable occasion for further discussion of the role of Brady prior to trial.

Evidence which is favorable to a defendant belongs to him. An imbalance in investigative resources often finds it in the hands of the prosecutor who, as a quasi-judicial officer bound to seek justice, holds it in trust for the defense. It is also axiomatic that due process requires that the accused be permitted to fully and equally participate in the truth-finding process of a fair trial. This includes, of course, the fundamental right to present evidence favorable to his case.

The rationale underlying the Brady rule thus has two interrelated aspects. Conduct detrimental to the integrity of the judicial system must be deterred. (People v. Savvides, 1 N.Y.2d 554, 154 N.Y.S.2d 885, 136 N.E.2d 853.) Also, withholding from a person accused of crime evidence with is rightfully his curtails his participation in the search for truth and thereby impairs the validity of the fact-finding process. (See Simos v. Gray, D.C., 356 F.Supp. 265.)

Brady itself does not limit the disclosure of favorable evidence to any particular stage in the proceedings. It states that suppression of such evidence 'upon request' violates due process. While the phrase 'upon request' seems to indicate that suppression can occur when favorable evidence is not thereupon promptly given to the defense, there is no explicit direction indicating a relationship between the timing of the request and when compliance must be made. ¹ Logically, however, the rationale behind requiring the disclosure of favorable evidence clearly indicates that it is not adequate compliance with due process when information furnished the defense is either too little or too late for the defendant to make the fullest use of it at the trial. 'No respectable interest of the State is served by its concealment of information which is material, generously conceived, to the case, including all possible defenses.' (Giles v. Maryland, Supra, 386 U.S. at p. 98, 87 S.Ct. at p. 809 (Fortas, J., concurring).) If the accused is to be a full-fledged participant in the truth-finding process, then, favorable evidence in the People's possession should be made available at the earliest possible opportunity in advance of trial to allow the defense sufficient time to investigate, evaluate, prepare and present it at the trial. (United States v. Partin, D.C., 320 F.Supp. 275.) Otherwise, the defendant is 'entirely at the prosecution's mercy, protected only by the prosecutor's slim duty to reveal evidence he might come upon which (is) favorable to the defense * * * This is hardly an adequate substitute for an independent investigation conducted by defendant's own counsel.' (United States v. Jordan, 4 Cir., 466 F.2d 99 at p. 107 (Sobeloff, J. dissenting).) The prosecution should not be privileged to decide for the defendant what is useful. (Griffin v. United States, 87 U.S.App.D.C. 172, 183 F.2d 990, 993.)

Of course the favorable character of certain information or its potential value to the defense cannot always be predicted by the prosecution in advance of trial. Also, some favorable evidence could not possibly have any meaningful or Bona fide relationship to the defendant's preparation for trial. Withholding evidence in the former case is unavoidable and it is harmless in the latter instance. But retaining favorable evidence which would obviously have significant bearing on the conduct or preparation of the defense unfairly limits its usefulness to the defense and its potential for development before the trier of fact. To do so is...