People v. Smith

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: CARRO; MURPHY
• Citation: People v. Smith, 618 N.Y.S.2d 649, 206 A.D.2d 102 (N.Y. App. Div. 1994)
• Decision Date: 15 November 1994
• Parties: The PEOPLE of the State of New York, Respondent, v. Steven SMITH, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Steven JOHNSON, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Carlos RAILEY, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Pasqual CARPENTER a/k/a Pascal Carpenter, Defendant-Appellant.

Page 649

618 N.Y.S.2d 649

206 A.D.2d 102

The PEOPLE of the State of New York, Respondent, v. Steven SMITH, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Steven JOHNSON, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Carlos RAILEY, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Pasqual CARPENTER a/k/a Pascal Carpenter, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 15, 1994.

Henry R. Deutsch, New York City, of counsel (Philip L. Weinstein, attorney), for defendant-appellant, Steven Smith.

Diane E. Courselle, New York City, of counsel (E. Joshua Rosenkranz, Office of Appellate Defender, attorney), for defendant-appellant Steven Johnson.

Ira Mickenberg, New York City, of counsel (Howard A. Pincus and Vaughn-Michael H. Cordes, on the brief, Office of Appellate Defender, attorney), for defendant-appellant Carlos Railey.

Frank Loss, New York City, of counsel (Philip L. Weinstein, attorney), for defendant-appellant Pasqual Carpenter.

Patrick J. Hynes, New York City, of counsel (Donald J. Siewert, on the brief, Robert M. Morgenthau, Dist. Atty., New York County, attorney), for respondent.

Before MURPHY, P.J., and CARRO, ELLERIN, WALLACH and RUBIN, JJ.

CARRO, Justice.

This is a combined decision in four cases wherein the defendants have appealed, by permission, from orders denying their motions pursuant to CPL 440.10 to vacate judgments convicting them, after jury trials, of murder in the second degree. Each defendant claims that the prosecutor's failure to turn over to the defense an audiotape or worksheet, prepared by a Medical Examiner as an aid in rendering the Medical Examiner's final autopsy report on the cause of the victim's death, requires our vacating his conviction. The underlying facts in each case, and the governing legal principles, which in our view require affirmance of each order appealed from, are as follows.

People v. Steven Smith

Defendant Steven Smith was convicted after a jury trial in the Supreme Court, New York County (James Leff, J.) of two counts of murder in the second degree and one count each of rape in the first degree, sodomy in the first degree, and robbery in the first degree. On November 20, 1989 he was sentenced to concurrent indeterminate prison terms of twenty five years to life on the murder convictions, and eight and one third to twenty five years on the other three convictions, with the latter sentences running consecutively to each other and to the terms imposed on the murder convictions. The convictions stemmed from Smith's murder and sexual assault on January 7, 1989 of Dr. Kathryn Hinnant, a recently married physician who was five months pregnant.

On the night in question Smith, who was secretly living as a squatter in Bellevue Hospital, entered Dr. Hinnant's office and subjected her to a brutal beating, after which he raped and anally sodomized her, stole her jewelry and other personal belongings, and strangled her to death. Smith then went to the men's shelter on Ward's Island where he told a friend and other shelter residents what he had done, expressed a desire to leave town, and enlisted their assistance in selling the property he had stolen. Smith's friend and two other shelter residents came forward and disclosed Smith's admissions, leading to his arrest. Smith was convicted upon his admissions, and physical evidence, including his blood-stained clothing and a blood-stained electrical cord that he used to strangle Dr. Hinnant, Dr. Hinnant's personal property that had been stolen during the murder and traced to Smith, Smith's fingerprints recovered from Dr. Hinnant's office, and DNA tests which matched the DNA from semen samples recovered from Dr. Hinnant's vagina and dress, with Smith's DNA. At trial the defense interposed was that Smith had committed the acts charged, but that he was not responsible for his actions because of mental disease or defect.

On October 21, 1993 Smith moved to vacate his conviction on the ground that Dr. Yury Kogan, the Assistant Medical Examiner who had testified at trial concerning the autopsy performed on the body of Dr. Hinnant, had made an audiotape of his observations while performing the autopsy, which was not supplied to defense counsel. Smith contended that the tape was "Rosario" material (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) which the People were required to obtain from the Office of the Chief Medical Examiner (hereafter "OCME") and provide to the defendant without request. The Rosario rule has been codified in section 240.45(1)(a) of the Criminal Procedure Law, which provides:

1. After the jury has been sworn and before the prosecutor's opening address, or in the case of a single judge trial after commencement and before submission of evidence, the prosecutor shall, subject to a protective order, make available to the defendant:

(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony[.]

Although the cause of death was never in issue at trial, Smith argued that the court was required to vacate his conviction without regard to the absence of prejudice to the defense, pursuant to People v. Jackson, 78 N.Y.2d 638, 578 N.Y.S.2d 483, 585 N.E.2d 795. The People opposed on the ground, inter alia, that the audiotape had never been in the possession or control of the local prosecutor (People v. Flynn, 79 N.Y.2d 879, 581 N.Y.S.2d 160, 589 N.E.2d 383). On November 23, 1993, Justice Leff summarily denied the defendant's motion without opinion. On January 25, 1994, a justice of this Court granted Smith's application pursuant to CPL 460.15 for a certificate granting leave to appeal from Justice Leff's order.

People v. Steven Johnson

Defendant Steven Johnson was convicted after a jury trial in the Supreme Court, New York County (Daniel P. FitzGerald, J.) of murder in the second degree, and one count each of criminal possession of a weapon in the second and third degrees. On September 18, 1991 he was sentenced as a second violent felony offender to concurrent indeterminate prison terms of twenty five years to life, seven and one-half to fifteen years, and three and one-half to seven years respectively.

On the evening of February 16, 1990, Steven Johnson and Ramon Almonte, both armed with handguns, approached Raphael Reyes and his uncle on the street. Reyes tried to run away, but Johnson chased him down and shot him three times, killing him. In addition to two eyewitnesses who identified Johnson as the shooter, another witness testified that immediately after the murder Johnson came to her apartment, admitted to the shooting, and hid the murder weapon in her kitchen. Johnson presented an alibi defense, but a rebuttal witness testified that Johnson had attempted to enlist her support in presenting a false alibi, and threatened her when she refused to lie for him. The cause of death was not an issue at trial.

On March 3, 1993 Johnson moved for an order vacating his conviction pursuant to CPL 440.10 on the ground that an audiotape dictated by Dr. Beverly Leffers, the forensic pathologist, which a typist had transcribed to become part of the autopsy report, was not turned over to the defense. Prior to the trial, in accordance with standard procedure in homicide cases, the OCME delivered to the District Attorney's office their file relating to the death of Reyes. Included in that file, and turned over to the defense, were numerous written documents pertaining to the autopsy of Reyes, including the written autopsy report and the written notes of the pathologist. The audiotape was not included in the file, and it was not delivered to the District Attorney's office. The question thus presented was whether the audiotape, in the possession of the OCME, was within the control of the local prosecutor (People v. Flynn, 79 N.Y.2d 879, 882, 581 N.Y.S.2d 160, 589 N.E.2d 383, supra ). On December 31, 1993, Justice FitzGerald denied Johnson's motion in a written opinion, finding that the OCME is not a law enforcement agency, and that various statutes requiring the OCME to cooperate with the District Attorney's office in homicide cases do not require a finding that the audiotape was in the constructive possession of the local prosecutor. A justice of this Court granted Johnson's application for a certificate granting him leave to appeal from Justice FitzGerald's order.

People v. Carlos Railey

Defendant Carlos Railey was convicted after a jury trial in the Supreme Court, New York County (Herbert J. Adlerberg, J.) of murder in the second degree. On February 14, 1990 he was sentenced to an indeterminate prison term of twenty five years to life.

On the night of April 8, 1988 Railey, a drummer with a musical group, met Brenda Lee Isaac at a Manhattan nightclub where his band was performing. Ms. Isaac invited Railey to spend the evening at her apartment so that he would not have to return to Philadelphia with the rest of the band that night. The essence of the murder charge was that sometime during the morning hours of April 9 Railey strangled Ms. Isaac with his shirt and stabbed her eighteen times, killing her. His defense was that a man was allowed into the apartment by Ms. Isaac at 6:30 a.m., while Railey was in the shower, and that Railey found her on the bed, stabbed and strangled, when he finished his shower. He testified that he was unable to call the police for approximately five hours because he did not know the address of the crime scene and was unable to flag down a police car during that period.

On August 17, 1992, while Railey's appeal was pending, his appellate attorney subpoenaed all the...