People v. Novoa

Decision Date25 November 1987
Citation517 N.E.2d 219,70 N.Y.2d 490,522 N.Y.S.2d 504
Parties, 517 N.E.2d 219 The PEOPLE of the State of New York, Respondent, v. Nestor NOVOA, Appellant.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

KAYE, Judge.

Central to this appeal are issues relating to promises of benefit by the prosecution to a trial witness who is under separate indictment for unrelated crimes. We conclude that the prosecutor here breached a duty to disclose such promises, to correct the witness's testimony that she was promised nothing, and to refrain from misstatement in summation. In the circumstances of this case, where there was also a Rosario 1 violation, the conviction must be vacated and a new trial ordered.

Defendant was charged with second degree murder for shooting Hippolito Rodriguez at 174 Rivington Street on Manhattan's Lower East Side. Defendant did not dispute that he shot Rodriguez but asserted that he did so in self-defense. At trial, the prosecution's version of the shooting was presented by Rodriguez's wife (Maria) who testified that, as her husband was returning from work, defendant shot him without provocation. Shortly before the shooting, defendant (the building's rent collector) had approached her in her apartment and threatened to kill her and "get rid of" her husband if they did not pay their rent. As soon as defendant departed, Maria Rodriguez ran to a window and shouted for help. Five minutes later, defendant confronted Hippolito Rodriguez in the hallway outside the Rodriguez apartment and shot him three times. Maria Rodriguez dragged her husband into their apartment and began yelling for help.

From her vantage point in a parked car outside the apartment building, Anita Ortiz (a neighbor) was able to corroborate parts of Maria Rodriguez's version of the events. She testified that immediately prior to the shooting she saw Hippolito Rodriguez return home from work. Shortly after he entered the building, Ortiz heard Maria Rodriguez call for her husband from the top floor of the building. Ortiz then heard several gunshots, followed by Maria Rodriguez's screams. Moments later, she saw defendant, defendant's wife and a third person (Pablo Rodriguez) rushing out of the building.

The defense's contrasting portrayal was presented by defendant and his friend, Pablo Rodriguez, who was in the hallway at the time of the shooting. According to both, it was Hippolito Rodriguez who instigated the confrontation by punching defendant and knocking him to the floor. Maria Rodriguez, who was standing next to her husband, began screaming. Kneeling on defendant, Hippolito Rodriguez began hitting him. With Maria Rodriguez shouting "kill him, kill him," Hippolito Rodriguez grabbed a machete from his wife. Defenda reacted by drawing a gun from his waistband and shooting twice. Rodriguez backed off and defendant fled.

On rebuttal the prosecutor called two police officers to discredit Pablo Rodriguez's testimony with prior inconsistent statements made shortly after the shooting. The People also recalled Anita Ortiz for the same purpose. She testified that the day after the shooting Pablo Rodriguez told her that defendant attacked Hippolito Rodriguez with a metal pipe, that Rodriguez managed to take the pipe from defendant, and that defendant then shot Rodriguez. After it was revealed that Ortiz was facing indictment for selling drugs to an undercover police officer, the prosecutor asked: "Mrs. Ortiz, had anyone promised anything with respect to your pending case?" She answered "no."

In summation, the prosecutor addressed Ortiz's credibility: "There's no reason for Anita to come to the defense of Maria Rodriguez unless what she heard and saw actually happened * * * Anita is a very strong, intelligent, forthright woman. Yes, she has been indicted for a crime * * * She also told you she wasn't promised anything, ladies and gentlemen. Anita did not have to be promised anything. I submit she's a woman who will stand or fall on her own merits." Following three days of deliberation, defendant was convicted of second degree murder and sentenced to a term of imprisonment of 25 years to life.

More than a year later, in the course of a second murder trial (the Corchado trial)--in which defendant was acquitted--defendant acquired information that prompted a motion pursuant to CPL 440.10 to vacate the conviction. During the Corchado trial, defendant learned that Ortiz--again a witness for the prosecution--had, after the Rodriguez trial, pleaded guilty and received lifetime probation rather than a prison senten for the drug charges that were pending against her at the time of defendant's trial for the Rodriguez murder. Defendant argued that the prosecutor had committed misconduct by permitting Ortiz to testify in the Rodriguez murder trial that no promises had been made, when she knew or should have known that Ortiz had been promised leniency in exchange for cooperation. The trial assistant denied knowing of any such agreement but acknowledged having told Ortiz "that I was making no promises in exchange for her testimony. I stated that if I were ever asked by anyone in the Special Prosecutor's Office I would tell them that she cooperated."

In further support of his motion to vacate the judgment defendant argued that the People also had failed to produce a report made by Police Detective Carrano in which the detective recorded statements made by Ortiz in an interview he and the trial assistant had conducted with her. The prosecution acknowledged that it had not provided defense counsel with the report, asserting that the omission was inadvertent and the substance insignificant. The trial assistant had photocopied Carrano's file and returned it to him by March or April 1982; she did not check the file again after the interview with Ortiz in May 1982, or before the trial commenced six or seven months later, believing that there would be no additional material.

At the CPL article 440 hearing, Assistant District Attorney Marcel Philippe of the Special Narcotics Prosecutor's office testified that he had been in charge of the prosecution of Anita Ortiz, who was under indictment for drug sales and upon conviction faced a mandatory sentence of three years to life in prison. Ortiz agreed to cooperate by providing information on other drug transactions; in return, Philippe promised to evaluate her cooperation and inform the Special Narcotics Prosecutor, who would ultimately decide whether to recommend a sentence of lifetime probation. Ortiz was permitted to plead guilty and was sentenced to lifetime probation. Both in his memorandum and at sentencing, Philippe told the court that in addition to the narcotics investigations, Ortiz had cooperated on a homicide case. The trial assistant testified that she was not familiar with the procedures of the Special Narcotics Prosecutor's office and was unaware that the Special Narcotics Prosecutor ever entered into agreements with defendants whereby defendants received probation in return for cooperation. Before trial she called Philippe to inform him that Ortiz was going to be her witness, but was not told of any cooperation agreement. With respect to the Rosario issue, Carrano testified that he and the trial assistant were present when Anita Ortiz gave her statement. Carrano recorded the statement, included it in a DD-5 report which he placed in the Rodriguez file, and did not show the report or the file to the trial assistant.

The trial court denied defendant's motion, concluding that "there was no promise by any ADA of a benefit to be extended to Ms. Ortiz on her narcotics cases in exchange for her testimony in this case." While recognizing that Ortiz was told that if anyone in Special Narcotics asked about her cooperation the trial assistant would reveal it, the court found that even that assurance was apparently given in the context of the Corchado case, not the Rodriguez case, which preceded it. Moreover, the court held that the People's failure to turn over Ortiz's statement--which was Rosario material--was inadvertent, which took the case out of the "strict liability" rule; the court then concluded that there was no prejudice because Ortiz's testimony was cumulative and not crucial to a finding of defendant's guilt. The Appellate Division affirmed, without opinion, 124 A.D.2d 1078, 508 N.Y.S.2d 132.

We now reverse.

The Promises Issue

The concept of fairness embodied in the Due Process Clauses of the State and Federal Constitutions imposes upon the prosecution a duty to apprise the defense of evidence favorable to the accused (People v. Cwikla, 46 N.Y.2d 434, 441, 414 N.Y.S.2d 102, 386 N.E.2d 1070; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). To give substance to this constitutional right, it is incumbent upon the prosecutor, who speaks for the government, to ensure that material evidence which is in its possession and is exculpatory in nature is turned over to the defendant (People v. Cwikla, 46 N.Y.2d 434, 441, 414 N.Y.S.2d 102, 386 N.E.2d 1070, supra; see, Giglio v. United States, 405 U.S. 105, 153-154, 92 S.Ct. 763, 765-766, 31 L.Ed.2d 104). This duty of candor and disclosure is no less applicable when the evidence is relevant only to the issue of credibility (People v. Cwikla, 46 N.Y.2d 434, 441, 414 N.Y.S.2d 102, 386 N.E.2d 1070, supra; see, People v. Savvides, 1 N.Y.2d 554, 557, 154 N.Y.S.2d 885, 136 N.E.2d 853). Thus, it is now firmly established that 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". (People v. Cwikla, 46 N.Y.2d 434, 441, 414 N.Y.S.2d 102, 386 N.E.2d 1070, supra; People v. Fein, 18 N.Y.2d 162, 172-173, 272 N.Y.S.2d 753, 219 N.E.2d 274, ...

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