People v. Carter
| Decision Date | 06 August 2015 |
| Docket Number | 105618 |
| Citation | 131 A.D.3d 717,15 N.Y.S.3d 855,2015 N.Y. Slip Op. 06445 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Lefonza CARTER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John P.M. Wappett, Public Defender, Lake George (Glenn B. Liebert of counsel), for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Before: McCARTHY, J.P., EGAN Jr., DEVINE and CLARK, JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered November 28, 2012, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the third degree (two counts).
Defendant was indicted and charged with two counts each of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The charges stemmed from defendant's sale of crack cocaine on April 9, 2012 and April 11, 2012 to a person known to him who was acting as a confidential informant (hereinafter CI) for the Warren County Sheriff's Department. On each occasion, the CI placed a call to defendant in advance, which was recorded, and the CI thereafter went to a hotel room occupied by defendant in the Village of Lake George, Warren County, where defendant provided the CI with crack cocaine in exchange for $100. During both transactions, the CI wore a transmitter, which allowed law enforcement officials to listen to the transactions, and also was equipped with a bluetooth-like device, which captured an audio and video recording of the sales. Following a jury trial, defendant was convicted as charged and sentenced to an aggregate prison term of 12 years followed by a period of postrelease supervision. This appeal by defendant ensued.
We affirm. Defendant initially contends that the People violated their obligation under Brady by failing to timely disclose impeachment information regarding the CI—specifically, details concerning her unrelated criminal activity before and after the subject sales and the terms of her cooperation agreement. Brady requires the People “to timely disclose all exculpatory and material evidence, including evidence that could be used to challenge the credibility of a crucial prosecution witness or that would reflect a cooperation agreement between a witness and the prosecution” (People v. Williams, 50 A.D.3d 1177, 1179, 854 N.Y.S.2d 586 [2008] [citations omitted]; see People v. Johnson, 107 A.D.3d 1161, 1164–1165, 967 N.Y.S.2d 217 [2013], lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013] ). In order to establish a Brady violation, a defendant must demonstrate that “(1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” (People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 [2009] ; accord People v. Garrett, 23 N.Y.3d 878, 885, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014] ; see People v. Serrano, 99 A.D.3d 1105, 1106, 952 N.Y.S.2d 669 [2012], lv. denied 20 N.Y.3d 1014, 960 N.Y.S.2d 358, 984 N.E.2d 333 [2013] ). Untimely or delayed disclosure will not prejudice a defendant or deprive him or her of a fair trial where the defense is provided with “a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his [or her] case” (People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987] ; see People v. Serrano, 99 A.D.3d at 1107, 952 N.Y.S.2d 669 ; People v. Williams, 50 A.D.3d at 1179, 854 N.Y.S.2d 586 ).
Here, in response to defendant's general omnibus request for Brady material, the People indicated that a CI had been utilized and compensated for her services; the CI's identity was disclosed in connection with the People's Molineux application in September 2012. On Friday, October 12, 2012, with the trial scheduled to begin the following Monday, the People made numerous additional disclosures relative to the CI, including the fact that she had been involved in the sale of hydrocodone in Washington County in December 2011, that she thereafter agreed to cooperate with Warren County law enforcement officials in exchange for promises that her assistance would be made known to prosecutors and that she subsequently was promised that, if she testified truthfully in this matter, she would not be criminally charged for the 2011 prescription drug sale. On the morning of the first day of trial, the People additionally disclosed, among other things, the CI's history of drug use and prior sales/purchases of drugs, as well as the fact that the CI, who then was incarcerated due to her failure to pay certain criminal fines, received an extra piece of crack cocaine from defendant during the April 9, 2012 sale, which she secreted and did not turn over to the police. The defense also was informed that the CI was involved in an unauthorized sale of crack cocaine in her apartment in May 2012, during which another informant made a controlled buy, and that the CI later testified before the grand jury in that matter. At the conclusion of the first day of trial, the People turned over the video recording of the May 2012 drug sale and the CI's related grand jury testimony.
Although County Court denied defendant's motion to dismiss the indictment in the interest of justice as a sanction for the delayed disclosure, the court ordered the People to make available to the defense the informant-buyer involved in the May 2012 sale and, further, to delay calling the CI to testify in order to allow the defense time to prepare. Consistent with that directive, the CI was not called by the People to testify until Friday, October 19, 2012, and her direct testimony extended into the following Monday—a full week after the last disclosure. At that point, the CI was subject to in-depth cross-examination, during the course of which she was meticulously impeached on all of the foregoing matters and admitted that she had lied to the grand jury regarding her activities during the May 2012 sale. Finally, the full terms of and circumstances surrounding the underlying cooperation agreement were elicited in detail, allowing the jury to assess the CI's credibility (compare People v. Steadman, 82 N.Y.2d 1, 7–8, 603 N.Y.S.2d 382, 623 N.E.2d 509 [1993] ; People v. Novoa, 70 N.Y.2d 490, 496–498, 522 N.Y.S.2d 504, 517 N.E.2d 219 [1987] ).1
As the record establishes that the defense had a meaningful opportunity to review and effectively use the impeachment materials, we are satisfied that no prejudice resulted from the delayed disclosure (see People v. Cortijo, 70 N.Y.2d at 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 ; People v. Serrano, 99 A.D.3d at 1107, 952 N.Y.S.2d 669 ; People v. Burroughs, 64 A.D.3d 894, 898, 882 N.Y.S.2d 751 [2009], lv. denied 13 N.Y.3d 794, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009] ). Further, under these circumstances, we find that there is no “reasonable probability” that, had the impeachment material been timely disclosed, the verdict would have been different (People v. Garrett, 23 N.Y.3d at 891, 994 N.Y.S.2d 22 ; accord People v. Fuentes, 12 N.Y.3d at 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 ). Accordingly, reversal upon this ground is not warranted.
We reach a similar conclusion regarding the People's failure to preserve the original digital recordings of the set-up calls and drug transactions. “[T]he prosecution is under a duty to diligently preserve all materials which may be subject to disclosure” until a request for disclosure is made (People v. Close, 103 A.D.2d 970, 971, 479 N.Y.S.2d 812 [1984] ; see People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498 [1984] ; People v. Gomez–Kadawid, 66 A.D.3d 1124, 1125, 888 N.Y.S.2d 621 [2009] ), and there is no dispute that these recordings were discoverable (see CPL 240.20[1][g] ; People v. Carpenter, 88 A.D.3d 1160, 1161, 931 N.Y.S.2d 442 [2011] ). In this instance, however, the testimony of members of the Warren County Sheriff's Department established that all of the audio and visual digital information recorded on the device worn by the CI during both sales, as well as the audio of the set-up calls, was immediately transferred to a computer—without alteration or deletion—and then copied to computer discs, which thereafter were provided to the defense. Only after the transfer of the original and complete digital recordings to the computer was the information removed from the recording device, so that such device could be reused. Thus, contrary to defendant's claims, the recorded digital information was never “destroyed” but, rather, was downloaded and transferred from one device to another, and the record reflects that he received an exact replica of the digital recordings (see People v. Burroughs, 64 A.D.3d at 896–897, 882 N.Y.S.2d 751 ; compare People v. Saddy, 84 A.D.2d 175, 178–179, 445 N.Y.S.2d 601 [1981] ). Moreover, even assuming that we were to find that the procedures employed here violated the People's disclosure obligations, there was neither a showing of bad faith by the officers nor any demonstrable prejudice to defendant so as warrant a sanction (see CPL 240.70[1] ; People v. Carpenter, 88 A.D.3d at 1161, 931 N.Y.S.2d 442 ; compare People v. Saddy, 84 A.D.2d at 179–180, 445 N.Y.S.2d 601 ).
Likewise, we find that County Court properly admitted into evidence the video recordings of the April 9, 2012 and April 12, 2012 controlled buys. “The decision to admit videotape evidence rests within the sound discretion of the trial court and will not be disturbed absent a lack of foundation for its introduction or a demonstrated abuse of the court's discretion” (People v. Boyd, 97 A.D.3d 898, 899, 948 N.Y.S.2d 450 [2012], lv. denied 20...
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