People v. Cwikla

• Decision Date: 08 February 1979
• Citation: 386 N.E.2d 1070,414 N.Y.S.2d 102,46 N.Y.2d 434
• Parties: , 386 N.E.2d 1070 The PEOPLE of the State of New York, Respondent-Appellant, v. Roger CWIKLA, Appellant-Respondent. The PEOPLE of the State of New York, Respondent, v. Wilfred FORD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 102

414 N.Y.S.2d 102

46 N.Y.2d 434, 386 N.E.2d 1070

The PEOPLE of the State of New York, Respondent-Appellant, v. Roger CWIKLA, Appellant-Respondent.

The PEOPLE of the State of New York, Respondent, v. Wilfred FORD, Appellant.

Court of Appeals of New York.

Feb. 8, 1979.

Henry Winestine and William E. Hellerstein, New York City, for appellant-respondent.

Eleanor Jackson Piel, New York City, for appellant.

Mario Merola, Dist. Atty. (Allen H. Saperstein and Billie Manning, New York City, of counsel), for respondent and respondent-appellant.

OPINION OF THE COURT

JONES, Judge.

A prosecutor is under a duty to disclose to defense counsel correspondence between the office of the District Attorney and the Parole Board advising of the co-operation of a principal prosecution witness in the trial of the witness' accomplices and expressing the hope that such co-operation will be taken into account when the witness is considered for parole. Further, a handkerchief used as a gag as in this instance is a dangerous instrument within subdivision 13 of section 10.00 of the Penal Law, which is not unconstitutional.

On February 1, 1972 defendants Cwikla and Ford, together with one Thomas Cox, were indicted and charged with felony murder, burglary and possession of a dangerous instrument as a misdemeanor in connection with a burglary of an apartment which occurred on January 4, 1972 and resulted in the death of the tenant. Defendant Cwikla and Cox were apprehended prior to the filing of this indictment but defendant Ford remained at large. Cox entered a plea of guilty to manslaughter in the first degree; Cwikla proceeded to trial and was found guilty of felony murder, burglary in the first degree and possession of a dangerous instrument. On appeal, this conviction was reversed because of prosecutorial misconduct and errors committed by the court (People v. Cwikla, 45 A.D.2d 584, 360 N.Y.S.2d 33).

On retrial Cwikla and Ford, who had been apprehended following Cwikla's first conviction, were tried together. At trial the prosecution contended that while burglarizing an apartment defendants, together with Cox, bound and with a handkerchief gagged the tenant of the apartment and that as a consequence of being so confined the tenant died of asphyxiation. Defendants were each convicted of burglary in the first degree and possession of a dangerous instrument as a misdemeanor; they were acquitted of the other charge. The Appellate Division affirmed those convictions but modified the sentences imposed (60 A.D.2d 40, 400 N.Y.S.2d 35). Both defendants and the People have been granted leave to appeal. For the reasons stated below we reverse and order a new trial.

At trial, the principal prosecution witness was the admitted participant Tommy Cox, who was then serving the sentence imposed on his plea of guilty to manslaughter in the first degree. During the course of his direct examination Cox testified that he had been given no promise in consideration for his testimony. On cross-examination he admitted that prior to testifying he had requested the Assistant District Attorney to write to the Parole Board on his behalf, but denied that he had been given any promise for his co-operation. Thereupon defense counsel made an application to the court for the production by the prosecution of any correspondence between the office of the District Attorney and the Parole Board concerning Tommy Cox. It was defense counsel's position that such material, if it existed, might be exculpatory as tending to show a motivation to lie on the part of the prosecution's chief witness. The Assistant District Attorney refused either to produce any such materials or to indicate whether or not any correspondence of this nature even existed. ¹ The trial court agreed to issue a subpoena directing the Parole Board to turn over any such material; it refused, however, to order disclosure from the prosecutor. It was not until the cases were on appeal to the Appellate Division that appellate counsel for the People for the first time furnished defense counsel with copies of pretrial correspondence which had been found in the Assistant District Attorney's trial folder. This consisted of the following:

(a) two letters from Tommy Cox's mother to the Assistant District Attorney who was trying the case asking his intervention with the Parole Board on her son's behalf;

(b) a letter to the State Department of Correctional Services with specific reference to Tommy Cox (forwarded in turn to the Board of Parole) in which the Assistant District Attorney wrote:

"It has come to my attention that the above named inmate will appear or has appeared before the Parole Commission for the purpose of determining whether the said inmate will be considered for parole.

"This letter is being written to you for the purpose of advising you and your Commission of this inmate's cooperation in the investigation and prosecution of a co-defendant by the name of Roger Cwikla. As a result of the cooperation displayed by Mr. Cox and the other evidence that was revealed during the course of the trial, the said defendant, Cwikla, was convicted of Murder and received a sentence of fifteen (15) years to life.

"At the time that the above named inmate, Mr. Cox, was sentenced by the Supreme Court of Bronx County, the Court was made aware of the cooperation extended by the said inmate at which time the Court imposed a sentence of fifteen (15) years.

"The undersigned feels that you and your commission should be made aware of the extreme cooperation given by Mr. Cox and hopefully you would consider the same at the time Mr. Cox appears before your body for consideration.

"You should also be advised that a third defendant in this case was apprehended recently (defendant Ford) and I am sure, if necessary, Mr. Cox will testify once again in the prosecution of the said third defendant.

"If there is further information that you desire from my office, please do not hesitate to call upon me."

(c) a letter from the chairman of the Board of Parole, acknowledging receipt of the Assistant District Attorney's letter and expressing gratitude "for your concern, and the valued insight you present with regard to Mr. Cox", adding: "The information provided in your correspondence is an added and welcome supplement to our case records, and I can assure you that it will be available to the Parole Board panel members who will meet with Mr. Cox to discuss release consideration."

It is fundamental that material evidence which is in the possession of the prosecution and which is exculpatory in nature must be turned over to the defendant in order to give meaning to the constitutional right to a fair trial (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). It is equally true that "(w)hen the 'reliability of a given witness may well be determinative of guilt or innocence', nondisclosure of evidence affecting credibility falls within this general rule." (Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217.) The existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles (Giglio v. United States, supra; Boone v. Paderick, 541 F.2d 447, 450).

The materials sought by defense counsel here correspondence between the office of the District Attorney and the Parole Board relating to the witness Tommy Cox were of such a nature that the jury could have found that, despite the witness' protestations to the contrary, there was indeed a tacit understanding between the witness and the prosecution, or at least so the witness hoped. We have on a previous occasion noted that the existence of such an agreement "might be a strong factor in the minds of the jurors in assessing the witness' credibility and in evaluating the worth of his testimony". (People v. Savvides, 1 N.Y.2d 554, 557, 154 N.Y.S.2d 885, 887, 136 N.E.2d 853, 855.) Consequently, in view of the significance which the jury might have attached to this evidence and in keeping with the principles enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, Supra, and its progeny, we hold that the nondisclosure of this evidence denied defendant his right to a fair trial.

Moreover, in the present circumstances we are dealing with a specific request by defense counsel which particularized the materials sought to be produced. As the Supreme Court has recently stated: "When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable". (United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342.) Here the conduct of the Assistant District Attorney was particularly inexcusable. His denial at trial of any knowledge concerning the existence of correspondence between his office and the Parole Board is mystifying in view of the fact that it was he who personally wrote to the ...