People v. Sibadan

• Decision Date: 10 March 1998
• Citation: 671 N.Y.S.2d 1,240 A.D.2d 30
• Parties: , 1998 N.Y. Slip Op. 2180 The PEOPLE of the State of New York, Respondent, v. Rohee SIBADAN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1

671 N.Y.S.2d 1

240 A.D.2d 30, 1998 N.Y. Slip Op. 2180

The PEOPLE of the State of New York, Respondent, v. Rohee SIBADAN, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 10, 1998.

David M. Cohn, of counsel (Rona Feinberg, on the brief, Robert M. Morgenthau, attorney), for respondent.

Robert C. Gottlieb, (Myra Derkatch Rochelson, on the brief), for defendant-appellant.

Before MILONAS, J.P., and WALLACH, RUBIN and MAZZARELLI, JJ.

MAZZARELLI, Justice.

Defendant was convicted of conspiring to kill his son-in-law. The evidence at trial established that defendant strenuously objected to his 21-year-old daughter's relationship and subsequent marriage to Fizul Khan ("Khan"), defendant's former employee. After the daughter moved from her parents' home in August 1994, defendant attempted to learn where his daughter and Khan were living, and made violent threats to Khan. On one occasion, defendant choked his daughter after she refused to divulge her address, and subsequently offered Khan, who was waiting outside in a car, $100 to reveal it. When Khan also refused, defendant told his son to write down Khan's license plate number.

In September 1994, defendant enlisted the aid of Fogarty George, a long-time acquaintance, in his plot to have Khan shot. George was a drug dealer who dealt in kilogram quantities of cocaine. He knew many of the drug gangs operating in the area of Manhattan where he also owned a sporting goods store. Defendant told George that one of his employees had stolen $20,000, and asked George to find him a "gun-man or hit man" to shoot this employee. George agreed, and defendant gave him a photocopy of a picture of Khan, Khan's address and beeper number, the name of the car service where Khan worked and his hours of employment. George, in turn, contacted Raymond Rivera, Jr., also known as "Dilly," who was a member of the YTC drug gang. George told Dilly that he had a job for him to "kill somebody," and gave Dilly the photocopy of Khan's picture and the other information regarding Khan. ¹

Ultimately, Dilly, fearful that he was the subject of a contract by other drug dealers, contacted the District Attorney's Office and was referred to Detective Mshar of the Homicide Investigation Unit ("HIU"). Dilly told Mshar about George's request for a hit and gave Mshar the photocopied picture of Khan. After Dilly engaged in several tape-recorded conversations with George concerning the plan to kill Kahn, George and Khan were arrested. The shooting never occurred. The photocopied pictures of Khan, and pieces of paper with information relating to Khan written in defendant's handwriting, were recovered from both George and defendant upon their arrest. Defendant's conviction of conspiracy in the second and fourth degrees was obtained largely through the testimony of George and Dilly, pursuant to cooperation agreements with the prosecution.

On appeal, defendant contends that the trial court should have granted his CPL 440.10 motion to vacate the judgment on the ground of newly discovered evidence, namely, the prosecution's failure to disclose certainBrady material (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). Defendant argues that despite his specific requests for disclosure of any cooperation agreements or promises made to George or any other witnesses in exchange for their testimony, the People failed to reveal George's cooperation with the Homicide Investigation Unit on prior unrelated matters between 1993 and 1994. Defendant does not dispute that the People fully disclosed the terms of the cooperation agreement between George and the District Attorney's Office regarding his testimony in this case. That agreement would permit him to plead guilty to the lesser charge of conspiracy in the fourth degree, with a recommendation by the People of a sentence of no more than 1 to 3 years.

In support of the motion, defendant offered excerpts of George's testimony in an unrelated prosecution that occurred after the verdict in this case in 1995. In that testimony, George stated that in 1993 he declined a request by Federal Drug Enforcement Agency (DEA) agents to participate in a sting operation. However, he admitted providing information in 1993 to a specific prosecutor in HIU, ADA Camacho, regarding the YTC gang. He also testified that in April-May 1994 he provided additional information about a dispute between members of the YTC gang and one of its members. Defendant argues that George's prior cooperation with HIU would have constituted significant impeachment evidence as it suggested a motive on George's part to "frame" defendant to improve his own position with the authorities.

In opposition, the prosecution submitted an affidavit of ADA Camacho. He stated that George was not a confidential informant for HIU in September 1994 when he was arrested, and "Fogarty George had not provided me with information prior to his arrest." The motion court denied defendant's CPL 440.10 motion, finding that no cooperation agreement with the DEA was established in the record, and "there is no evidence of a prior undisclosed agreement between the prosecution and [George]." The court further ruled that assuming George had previously cooperated with the DEA, no Brady violation occurred because no exculpatory material was in the possession of the People.

We affirm the denial of defendant's motion to vacate the judgment, but for different reasons. "A defendant has the right, guaranteed by the Due Process Clauses of the Federal and State Constitutions, to discover favorable evidence in the People's possession which is material to guilt or punishment (Brady v. Maryland, [373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215]; People v. Vilardi, 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 555 N.E.2d 915)." (People v. Scott, 88 N.Y.2d 888, 890, 644 N.Y.S.2d 913, 667 N.E.2d 923). The prosecution's duty to disclose Brady material applies to evidence affecting the credibility of a government witness, including evidence of any agreement or promises of leniency given to the witness in exchange for favorable testimony against an accused (People v. Steadman, 82 N.Y.2d 1, 7, 603 N.Y.S.2d 382, 623 N.E.2d 509; People v. Novoa, 70 N.Y.2d 490, 496, 522 N.Y.S.2d 504, 517 N.E.2d 219; People v. Cwikla, 46 N.Y.2d 434, 441, 414 N.Y.S.2d 102, 386 N.E.2d 1070; Giglio v. United States, 405 U.S. 150, 153-154, 92 S.Ct. 763, 765-766, 31 L.Ed.2d 104).

The defendant, through his counsel, did make a specific request for the undisclosed material (see, People v. Scott, supra at 890, 644 N.Y.S.2d 913, 667 N.E.2d 923). In his demand for discovery, defense counsel requested any material constitutionally required to be disclosed including "any and all records, memorandum and correspondence between the witnesses and law enforcement authorities which might reasonably reflect on the witness' motives and relationships with the District Attorney." We believe this broadly worded request would include a prosecution witness's prior informant status (id.; see also, People v. Wright, 86 N.Y.2d 591, 596-597, 635 N.Y.S.2d 136, 658 N.E.2d 1009). Thus, "[w]here the prosecutor has been made aware by a specific discovery request that defendant considered certain material important to the defense, the failure to disclose such evidence is governed by a 'reasonable possibility' standard of prejudice--i.e., a reasonable possibility that the outcome of the trial would have differed had the evidence been produced (People v. Vilardi, [supra ] at 77, 556 N.Y.S.2d 518, 555 N.E.2d 915)." (People v. Scott, supra at 890-891, 644 N.Y.S.2d 913, 667 N.E.2d 923).

However, it is questionable whether George's prior contact with HIU constituted Brady material at all. Although in People v. Wright (supra ), the Court of Appeals concluded that a prosecution witness's prior activity as a police informant constituted Brady material under the unique facts of that case, to be discussed infra, it did not establish a blanket rule. Indeed, such a rule would be inconsistent with prior interpretations of the scope of the prosecutor's duty to disclose agreements and/or promises made to witnesses in exchange for their testimony (see, People v. Novoa, supra; People v. Piazza, 48 N.Y.2d 151, 163, 422 N.Y.S.2d 9, 397 N.E.2d 700; People v. Matos, 221 A.D.2d 277, 634 N.Y.S.2d 461, lv. denied 87 N.Y.2d 1022, 644 N.Y.S.2d 155, 666 N.E.2d 1069; see also, People v. St. John, 89 N.Y.2d 1018, 657 N.Y.S.2d 591, 679 N.E.2d 1071). Generally, the prosecutor's disclosure obligation arises only where "the prosecutor and the witness have reached an understanding in which the witness's cooperation has been exchanged for some quid pro quo on the part of the prosecutor" (People v. Novoa, supra at 497, 522 N.Y.S.2d 504, 517 N.E.2d 219), or where there is any other indication that the witness' cooperation "was bargained for, directly or indirectly" (People v. Piazza, supra at 163, 422 N.Y.S.2d 9, 397 N.E.2d 700; People v. Matos, supra at 278, 634 N.Y.S.2d 461).

As the People argue, there is no evidence that George was promised anything for his previous cooperation. Certainly, defendant's prior cooperation bore no relation to his agreement to testify in this case. The terms of George's cooperation agreement, fully disclosed to the defense, make this entirely clear. Thus, standing alone, the fact that George was previously an informant for HIU does not establish any agreement or understanding that George would receive any benefits for the information he provided (see, People v. Matos, supra ).

Even if we considered George's prior contacts with HIU Brady material, reversal would not be required as there is no reasonable possibility that had the information been disclosed the outcome of the proceeding would have been different (see, People v. Scott, supra; People v. Vilardi, 76 N.Y.2d 67, 556 N.Y.S.2d 518, 555 N.E.2d 915). Clearly, the jury's awareness that George was receiving a favorable...