People v. Brown

• Decision Date: 01 July 1986
• Citation: 505 N.Y.S.2d 574,496 N.E.2d 663,67 N.Y.2d 555
• Parties: , 496 N.E.2d 663 The PEOPLE of the State of New York, Respondent-Appellant, v. Charles L. BROWN, Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 574

505 N.Y.S.2d 574

67 N.Y.2d 555, 496 N.E.2d 663

The PEOPLE of the State of New York, Respondent-Appellant, v. Charles L. BROWN, Appellant-Respondent.

Court of Appeals of New York.

July 1, 1986.

Certiorari Denied Feb. 23, 1987.

See 107 S.Ct. 1307.

Susan P. Wheatley, Rose H. Sconiers and John A. Ziegler, Buffalo, for appellant-respondent.

Richard J. Arcara, District Attorney (Rosemarie A. Wyman and John J. DeFranks, Buffalo, of counsel), for respondent-appellant.

OPINION OF THE COURT

PER CURIAM.

These cross appeals concern the consequence of the People's failure to produce photo arrays in response to defendant's request, the admissibility of expert testimony, and the propriety of separate convictions of robbery in the first degree involving a firearm and criminal use of the same firearm.

On February 5, 1981, several masked men entered a Buffalo tavern and committed a gunpoint robbery. Five days later, Merrel Sanford, a special police officer who had chanced upon the incident, identified defendant from a photo array as a participant in the robbery. Indicted for robbery, criminal use of a firearm, and unlawful imprisonment, defendant made a demand for production of documents and a Brady request, including a request for "photos that were used in the photograph identification". The People responded that there was no Brady material, and offered to make available the District Attorney's file (other than work product and Grand Jury minutes) for defendant's inspection. At a Wade hearing, which resulted in denial of defendant's motion to suppress any identification evidence, the People displayed the five photographs used when defendant was identified. Moreover, they assured defense counsel (contrary to doubts he had voiced) that there was no photograph of defendant in a first array that had been viewed by Sanford, and that a parole picture of defendant was used because it was the only recent photograph the People had of defendant. In a letter three days later, the People advised defense counsel that the first photo array shown to Sanford was not in existence.

At a bench trial commencing June 23, 1982 before the same Judge who denied defendant's suppression motion, Sanford was extensively cross-examined about his prior identification of defendant. He testified that he had viewed at least two photo arrays--the first immediately following the crime, at which defendant's picture did not appear, and the second five days later, when he was shown more than one picture of defendant. During the cross-examination, in response to defense counsel's question, the People assured him that the photographs were still available. Defendant made no objection to Sanford's identification testimony, no effort to reopen the Wade hearing, and no mention of the People's failure to produce in his comprehensive motion at the close of the People's case or elsewhere, until after the court had determined that defendant was guilty. The Appellate Division, 112 A.D.2d 13, 490 N.Y.S.2d 375, modified the judgment of conviction of seven counts of robbery in the first degree (Penal Law § 160.15[4] ), one count of robbery in the first degree (Penal Law § 160.15[2] ), and two counts of criminal use of a firearm in the first degree (Penal Law § 265.09[2] ) by reversing the two weapons counts, and otherwise affirmed. Both parties appeal.

Defendant urges that the People violated Brady by failing to produce the photographs in response to his requests, and that he was therefore denied a fair trial. Assuming the disputed information is Brady material, we conclude that defendant is entitled neither to a new trial nor to reopen the Wade hearing. While the People unquestionably have a duty to disclose exculpatory material in their control (see, People v. Simmons, 36 N.Y.2d 126, 131, 365 N.Y.S.2d 812, 325 N.E.2d 139), and failure to respond to a specific, relevant request is seldom, if ever, excusable (see, People v. Cwikla, 46 N.Y.2d 434, 441, 414 N.Y.S.2d 102, 386 N.E.2d 1070), here--though the prosecutor's conduct with respect to production is hardly laudable--reversal is not required. The information was known to defense counsel at the latest during his cross-examination of Sanford (cf. People v. Ahmed, 20 N.Y.2d 958, 286 N.Y.S.2d 850, 233 N.E.2d 854), when the details of the various arrays were elicited and the photographs still available for inspection, yet defendant took no steps to challenge the identification based on that information until after he was found guilty. Defendant cannot claim that he was deprived of due process when he had the opportunity during the bench trial to cross-examine the identifying witness using the allegedly exculpatory evidence (see, People v. Smith, 63 N.Y.2d 41, 68, 479 N.Y.S.2d 706, 468 N.E.2d 879, cert. denied 469 U.S. 1227, 105 S.Ct. 1226, 84 L.Ed.2d 364; compare, People v. Geaslen, 54 N.Y.2d 510, 446 N.Y.S.2d 227, 430 N.E.2d...