People v. Poventud

• Decision Date: 06 October 2005
• Docket Number: 2456/1997.
• Citation: 2005 NY Slip Op 25420,10 Misc.3d 337,802 N.Y.S.2d 605
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MARCOS POVENTUD, Defendant.
• Court: New York Supreme Court

10 Misc.3d 337

802 N.Y.S.2d 605

2005 NY Slip Op 25420

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. MARCOS POVENTUD, Defendant.

2456/1997.

Supreme Court, Bronx County.

October 6, 2005.

Julia Kuan for defendant.

Robert T. Johnson, District Attorney (Jeremy Shockett of counsel), for plaintiff.

OPINION OF THE COURT

ALEXANDER W. HUNTER, JR., J.

Defendant moved to vacate his judgment of conviction for attempted murder in the second degree and other related crimes on the ground that his rights under Brady v Maryland (373 US 83 [1963]) and People v Rosario (9 NY2d 286 [1961]) were violated and on the ground that there is newly discovered evidence.

This court decided the motion with respect to newly discovered evidence in a decision dated March 28, 2005. With respect to that branch of the motion that involved a Brady/Rosario violation, this court held a hearing that was conducted over several days beginning on May 12, 2005 and concluding on June 15, 2005. The parties were permitted to submit posthearing briefs and the defendant's reply brief was received by this court on September 16, 2005. In determining that branch of the motion which involved the Brady/Rosario violation, this court hereby incorporates all of the documents submitted by the defendant and the People prior to the hearing of this matter in addition to the evidence introduced at the hearing. At the hearing, the defendant called two witnesses: Edmund Byrnes, Esq., trial counsel for defendant Poventud, and Douglas Lyons, Esq., trial counsel for codefendant Robert Maldonado. The People called one witness, Sergeant Kenneth Umlauft.

The defendant and a codefendant, Robert Maldonado, were convicted on April 29, 1998 of shooting Younis Duopo during a robbery of his livery cab. In May 2002, the Court of Appeals reversed the conviction of Robert Maldonado and remanded the case for a new trial. During the course of Maldonado's second trial, defendant Poventud claims that new evidence was introduced which demonstrated that the prosecution did not turn over evidence that was favorable to the defendant, thus resulting in a Brady violation. Specifically, on March 10, 1997, the complainant viewed a photo array presented by Sergeant Kenneth Umlauft, selected an identification card bearing the photograph of Francisco Poventud, the defendant's brother, initialed and dated it and wrote on a separate piece of paper "looks a lot like him."^*

At the heart of defendant's motion is his assertion that he was not informed by the prosecution that the complainant had selected Francisco Poventud, the defendant's brother, as a person resembling one of his assailants, nor did the prosecution provide the defense with any documentation written by the complainant regarding said identification procedure, thus resulting in a Rosario violation. The piece of paper where the complainant wrote "looks a lot like him" was never turned over and has never been located though Sergeant Umlauft testified that it was placed in the case folder.

This court credits the testimony of defense counsel Edmund Byrnes and defense counsel Douglas Lyons. Defendant's trial counsel, Edmund Byrnes, testified at the hearing that he was never informed by the District Attorney's office of the identification proceeding involving defendant Poventud's brother Francisco nor was the paper where he wrote "looks a lot like him" ever turned over to him. He testified at length as to how he would have used that identification procedure at the trial if he had been informed of it. The People allege that during the trial, Sergeant Umlauft had an off-the-record conversation with both Mr. Byrnes and cocounsel Douglas Lyons, wherein Sergeant Umlauft informed both attorneys as to this identification procedure involving defendant Poventud's brother. Douglas Lyons, Esq., testified that he did not recall having an off-the-record conversation with Sergeant Umlauft which involved the identification procedure at issue. Both attorneys testified that there would be no strategic or tactical reason not to use that misidentification procedure at the trial when identification of the defendants played such a major role.

Sergeant Umlauft's testimony was that he conducted the identification procedure at the hospital while the complainant was "awake" and "alert" but not able to speak. In addition, Sergeant Umlauft testified that the complainant did not have his glasses on but he looked at the photo array and wrote on a pad "looks like him." Sergeant Umlauft had the complainant sign by the photo where he wrote that statement and testified that he had a conversation with the assigned Assistant District Attorney, Greg Turkin, about the identification proceeding. He further testified that Assistant District Attorney Turkin told him to speak to the two defense attorneys at a recess during the trial about the identification proceeding and he did so in the rear of the courtroom.

Under People v Vilardi (76 NY2d 67 [1990]), the standard to be used to determine whether or not a defendant is entitled to a new trial based upon the prosecution's failure to disclose exculpatory material, which has been requested, is a "reasonable possibility" that the failure to disclose the exculpatory evidence contributed to the verdict. Moreover, CPL 240.45 (1) (a) states that "After the jury has been sworn and before the prosecutor's opening address . . . the prosecutor shall, subject to a protective order, make available to the defendant:

"(a) Any written or recorded statement . . . made by a person whom the prosecutor intends to call as a witness at trial, and...