People v. Page

• Decision Date: 13 March 2014
• Citation: 982 N.Y.S.2d 188,115 A.D.3d 1067,2014 N.Y. Slip Op. 01642
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric PAGE, Appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 1067

982 N.Y.S.2d 188

2014 N.Y. Slip Op. 01642

The PEOPLE of the State of New York, Respondent,

v.Eric PAGE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

March 13, 2014.

G. Scott Walling, Pembroke Pines, Florida, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY and GARRY, JJ.

McCARTHY, J.

Appeal, by permission, from an order of the County Court of Schenectady County (Drago, J.), entered October 2, 2012, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of murder in the second degree, attempted murder in the second degree and assault in the first degree, without a hearing.

In December 1994, defendant was convicted of murder in the second degree, attempted murder in the second degree and assault in the first degree and was sentenced to an aggregate prison term of 28 1/3 years to life. Defendant's conviction was affirmed by this Court (225 A.D.2d 831, 638 N.Y.S.2d 985 [1996],lv. denied88 N.Y.2d 883, 645 N.Y.S.2d 457, 668 N.E.2d 428 [1996] ). In May 2012, defendant moved to vacate his judgment of conviction pursuant to CPL 440.10, based upon newly discovered evidence in the form of a ballistics report obtained through a Freedom of Information Law request and the affidavit of a new witness alleging that a third party had admitted to committing the crimes. County Court denied defendant's motion without holding a hearing and defendant now appeals, by permission.

Defendant first argues that the ballistics report constituted Brady material and that there was a “reasonable probability” that it would have changed the outcome of the proceedings ( People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 [2009];see People v. Matthews, 101 A.D.3d 1363, 1367, 956 N.Y.S.2d 317 [2012],lvs. denied20 N.Y.3d 1101, 1104, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013];People v. Auleta, 82 A.D.3d 1417, 1421, 919 N.Y.S.2d 222 [2011],lv. denied17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ). Assuming, without deciding, that the report constituted Brady material and that the People were under an obligation to disclose it, we nonetheless find defendant's contention without merit. Here, defendant's conviction was premised upon the testimony of Marvin Grimsley, the victim who survived the attack, who testified that he and the other victim, Ralph Vilanueva, had purchased crack cocaine from defendant twice during the day and that, when defendant returned to collect money and they were unable to pay, defendant fired two shots, one killing Vilanueva and the other wounding Grimsley (225 A.D.2d at 832, 638 N.Y.S.2d 985). The ballistics report proffered by defendant simply stated that the bullets recovered from the two victims lacked sufficient microscopic detail to determine whether they were fired from the same weapon and, therefore, defendant's contention that such evidence could have been used to challenge the People's theory that one gun fired both bullets did not raise a reasonable probability that the outcome of his trial would have been different ( see People v. Matthews, 101 A.D.3d at 1367, 956 N.Y.S.2d 317;People v. Auleta, 82 A.D.3d at 1421, 919 N.Y.S.2d 222).¹

However, we find that the affidavit of Maurice Miller proffered by defendant was sufficient to warrant a hearing. Miller's affidavit was subscribed to in January 2012 and alleged, among other things, that he had witnessed another drug dealer, Alexander Llanos, sell crack to Grimsley on the day of the shooting, that defendant was not present in the area, and that Llanos later confessed to the shooting. First addressing whether the evidence could have been obtained with due diligence prior to trial, a court must keep in mind “the practicalities of the situation” and weigh the “limited resources generally available” to a defendant ( People v. Hildenbrandt, 125 A.D.2d 819, 821, 509 N.Y.S.2d 919 [1986],lv. denied69 N.Y.2d 881, 515 N.Y.S.2d 1029, 507 N.E.2d 1099 [1987];see People v. Tankleff, 49 A.D.3d 160, 180, 848 N.Y.S.2d 286 [2007] ). Miller averred that he had not contacted police at the time of the crime because he feared retaliation. Defendant was 16 years old, incarcerated and had assigned counsel. Under these circumstances, there is no indication that defendant's failure to discover this witness was the result of a lack of due diligence ( see People v. Hildenbrandt, 125 A.D.2d at 821–822, 509 N.Y.S.2d 919).

Turning to the question of whether the evidence proffered was merely impeachment evidence, the confession of Llanos to the crime was material to the ultimate issue of defendant's guilt or innocence ( see People v. Nicholson, 222 A.D.2d 1055, 1056–1057, 635 N.Y.S.2d 869 [1995];compare People v. Richards, 266 A.D.2d 714, 715, 698 N.Y.S.2d 785 [1999],lv. denied94 N.Y.2d 924, 708 N.Y.S.2d 364, 729 N.E.2d 1163 [2000] ). Furthermore, a...