People v. Perez
| Decision Date | 04 June 1985 |
| Citation | 490 N.Y.S.2d 747,65 N.Y.2d 154,480 N.E.2d 361 |
| Parties | , 480 N.E.2d 361 The PEOPLE of the State of New York, Respondent, v. Angel PEREZ, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The defendant was convicted of felony murder and manslaughter after a jury trial. The Appellate Division affirmed his conviction with one Justice dissenting. Leave to appeal to this court was granted by a Justice of the Appellate Division.
The primary issue is whether it was proper for the prosecutor to withhold from defense counsel statements made by a prosecution witness to members of the defendant's family. These statements were made in apparent furtherance of a bribe offer or request relating to the homicide charge on which the defendant was then awaiting trial. The defendant claims he was entitled to the statements under Peop v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881. He also urges that they constituted exculpatory matter under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.
On September 16, 1977 Benedicto Muniz, known as "Junior", was shot to death in Brooklyn. The defendant and Antonio Calderone were indicted for intentional murder and felony murde on the theory that they killed Junior in the course of robbing him.
The shooting took place at the apartment of Nydia Marcano who is the sister of the defendant's wife. Nydia Marcano resided at the apartment with her children, Jose and Angel, and with two other women, Iris Maldonado and Cecilia Matos. Jose and Cecilia allegedly witnessed the incident; Nydia and Iris were in another room but came to the scene after hearing the shots. All four of them testified for the prosecution.
Prior to trial the defendant made an omnibus motion in which he requested discovery of several items, including statements made by witnesses and exculpatory evidence. The prosecutor replied that exculpatory matter had been disclosed and that witnesses' statements would be furnished at trial, in accordance with People v. Rosario (supra ).
Approximately one month before the trial began Nydia Marcano and certain members of the defendant's family discussed whether Nydia could leave the area and thus not testify at the trial if she were given a sum of money. Nydia informed the prosecutor that the defendant's family had initiated the conversation and offered the bribe. The defendant's family informed his attorney that Nydia had approached them and solicited a bribe.
At the prosecutor's behest Nydia telephoned her sister and her sister's son Francesco, to discuss the matter further. Both of these conversations were recorded and transcribed at the prosecutor's direction. Soon thereafter defense counsel informed the court as to what the defendant's family had told him. He requested that a hearing be held but the prosecutor opposed it. The court denied defense counsel's motion, apparently adopting the prosecutor's argument that this matter could be explored on cross-examination at trial. The District Attorney did not inform the court or defense counsel with respect to his knowledge of the incident.
At the trial Nydia Marcano testified for the prosecution with respect to the homicide, without making any reference to the bribery discussions which occurred while the defendant was awaiting trial. When she concluded her direct testimony, the prosecutor furnished defense counsel with a copy of a statement she made to the police after the shooting and a copy of her Grand Jury testimony concerning that crime. He did not provide defense counsel with copies of the statements she made in connection with the bribery conversations.
On cross-examination, however, defense counsel inquired as to whether she had asked members of the defendant's family for money in return for not testifying. She stated that, on the contrary, it was they who had offered to pay her money if she would not testify. When defense counsel asked if she had informed the prosecutor of this she replied that she had and that he instructed her to call them back and act as if she were planning to accept the money. Acting on those instructions, she called her sister, Suzanna, and her sister's son, Francesco. She stated that the calls were made from the prosecutor's office and were taped by him.
On redirect the prosecutor began refreshing the witness' recollection by reference to a transcript of the conversation she had had with her sister concerning the bribery. It was only at that point that the prosecutor furnished defense counsel with a copy of that transcript. However, defense counsel did not question her further concerning this incident.
After she had left the stand, defense counsel reminded the court that he had originally asked for a hearing to explore this matter. The court took the view however that the difficulty could have been avoided if the defendant's family had been more honest with defense counsel. The prosecutor agreed that the problem arose because defense counsel "blindly proceeds on cross-examination and opens the door on the situation". When defense counsel asked to find out what information the prosecutor had with respect to her testimony concerning the bribery, the prosecutor objected on the ground that he had already provided defense counsel with more information than he was entitled to. As a result defense counsel was never given a copy at trial of the transcript of the second recorded conversation between Nydia and the defendant's stepson, Francesco. Although defense counsel later called Francesco to the stand, he was not questioned by either side with respect to the bribery.
As noted, the jury found the defendant guilty of felony murder and manslaughter and the Appellate Division affirmed by a divided court.
The majority at the Appellate Division concluded that the defendant's rights under Rosario had not been violated. The court noted that, on redirect, the prosecutor furnished defense counsel with a copy of Nydia's statements to the defendant's wife. With respect to her statements to Francesco, the majority observed that when the defendant specifically requested that transcript, it was evident that he had no intention of using it to further cross-examine Nydia with respect to the matter which had already damaged his case, and thus there was no interference with his rights under Rosario. The majority also found that the statements were not exculpatory because the witness had not suggested that the defendant was innocent. To the extent the statements could be "broadly classified" as exculpatory because they reflected on the witness' credibility, the court concluded that the failure to furnish them would be harmless. The dissenter urged that the prior statements regarding the bribery were covered by the Rosario rule and that the defendant had not waived his right to have them furnished to aid in the cross-examination of Nydia Marcano (100 A.D.2d 366, 474 N.Y.S.2d 767).
In People v. Rosario (supra ), we held that once a witness testifies for the People, the prosecutor is obligated to turn over to defense counsel the witness' prior statements relating to "the subject matter of the witness' testimony" (9 N.Y.2d 286, 289, 213 N.Y.S.2d 448, 173 N.E.2d 881). The purpose of the rule "is to afford the defendant a fair opportunity to cross-examine the People's witnesses at trial" (People v. Poole, 48 N.Y.2d 144, 149, 422 N.Y.S.2d 5, 397 N.E.2d 697). The Rosario rule represents a departure from prior law...
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