People v. Ulett

• Decision Date: 25 June 2019
• Docket Number: No. 55,55
• Citation: 33 N.Y.3d 512,129 N.E.3d 909,105 N.Y.S.3d 371
• Parties: The PEOPLE Of the State of New York, Respondent, v. Derrick ULETT, Appellant.
• Court: New York Court of Appeals Court of Appeals

33 N.Y.3d 512

129 N.E.3d 909

105 N.Y.S.3d 371

The PEOPLE Of the State of New York, Respondent,

v.Derrick ULETT, Appellant.

No. 55

Court of Appeals of New York.

June 25, 2019

Paul Skip Laisure, Appellate Advocates, New York City (Leila Hull of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn (Ruth E. Ross, Leonard Joblove and Victor Barall of counsel), for respondent.

The Bronx Defenders, Bronx (Amalea Smirniotopoulos, Saul Zipkin and Ilona Coleman of counsel), for The Bronx Defenders and others, amici curiae.

OPINION OF THE COURT

GARCIA, J..

Defendant Derrick Ulett was convicted of murder for shooting Ruben Alexandre outside an apartment building in Brooklyn. The proof was substantial: several witnesses placed defendant at the scene, with two identifying him as the shooter. We hold, however, that the People violated their constitutional obligation to disclose a surveillance video that captured the scene at the time of the shooting, including images of the victim and a key prosecution witness. Failure to produce this video raises a reasonable probability that its disclosure would have produced a different result at trial. Accordingly, we reverse the order of the Appellate Division.

I.

The prosecution is required to disclose information that is both favorable to the defense and material to either defendant's guilt or punishment (see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ; People v. Vilardi, 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 555 N.E.2d 915 [1990] ). That duty to disclose encompasses impeachment evidence as well as exculpatory evidence (see Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 [1999] ; Giglio v. United States, 405 U.S. 150, 154–155, 92 S.Ct. 763, 31 L.Ed.2d 104 [1972] ). "The rule applies regardless of the good or bad faith of the prosecutor, for its purpose is not to punish misconduct but to insure that the accused receives a fair trial" ( People v. Bryce, 88 N.Y.2d 124, 129, 643 N.Y.S.2d 516, 666 N.E.2d 221 [1996] ). To establish a Brady violation warranting a new trial, "the defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ( People v. Hayes, 17 N.Y.3d 46, 50, 926 N.Y.S.2d 382, 950 N.E.2d 118 [2011] ; see also Strickler, 527 U.S. at 281–282, 119 S.Ct. 1936 ). With this well-established standard in mind, we examine the People's proof, the relevance of the missing evidence, and the potential effect of suppression on the outcome of the trial.

II.

In March 2008, the victim was shot and killed in front of 48 St. Paul's Place. Defendant was arrested more than one year later. At his trial, the People presented a series of eyewitnesses: two witnesses identified defendant as the shooter and one placed him at the scene at the time of the murder. Defense counsel extensively cross-examined the witnesses, concerning, among other things, motive to fabricate testimony, opportunity to observe the relevant events, and inconsistencies with other witness accounts.

A bystander walking down St. Paul's Place witnessed the shooting and thereafter identified defendant as the shooter. On cross-examination, this witness conceded that she had only a brief glimpse of the side of the shooter's face. She testified that she did not see anyone else at the scene at the time of the shooting.

A second witness testified that, shortly before the shooting, he saw three men, including the victim, standing outside 48 St. Paul's Place. Later, as the witness stood on an adjacent street corner, he saw defendant, whom he had known for more than 20 years, walking toward him before turning left onto St. Paul's Place. He heard gunshots less than a minute later. The witness saw defendant cross the street and walk back toward him holding something in his waistband. To corroborate this testimony, the People introduced surveillance video from defendant's apartment building, which showed an individual generally matching the witness's description of defendant leave the building minutes before the shooting and return soon thereafter. On cross-examination, the witness testified that he saw the same two individuals with the victim both before and after he was shot—testimony that contradicted that given by a third witness, Rashawn Cream, and the bystander.

Cream, a childhood friend of both the victim and defendant, was present when the shooting occurred and was the key witness at trial. At the time of the murder, Cream had pending robbery and narcotics charges from a 2007 arrest. He fled the scene without speaking to the police. Ten months later he came forward with his version of events in an effort to obtain favorable treatment on the unrelated criminal charges. After his statement to police but prior to trial in this case, Cream was given a plea deal to reduced charges, although he testified at defendant's trial that there was no agreement to reduce the sentence in exchange for his cooperation. With respect to the murder, Cream stated that he and the victim were outside 48 St. Paul's Place when defendant came around the corner and began arguing with the victim before pulling out a gun and shooting him. According to Cream, defendant ran back up St. Paul's Place and around the corner, consistent with other witness testimony. Cream testified that he was alone with the victim and denied being with anyone else both before and immediately after the shooting. Defense counsel extensively cross-examined Cream about who he was with both before and after the murder; defendant's actions at time of the shooting, including the direction in which he fled from the scene; and Cream's actions after the shots were fired.

In summation, defense counsel emphasized that there was no video evidence to establish what happened in front of 48 St. Paul's Place at the time of the shooting. Referencing testimony that the building had surveillance cameras in the lobby, defense counsel pointed out that no video from those cameras had been introduced:

"Where is that video surveillance? Wouldn't you think, ladies and gentlemen, that if there was video camera surveillance at 48 St. Paul's Place, that would be very important, that possibly could show what it was that took place; don't you think it would have shown who actually shot [the victim]? We don't have that video."

The prosecutor responded:

"[Y]ou heard from [defense counsel] that there are video cameras inside 48 St. Paul's Place; inside the lobby, okay. Common sense, ladies and gentlemen, you saw that the police recovered video footage from [defendant's apartment building], ... which is around the corner in the direction of flight that the defendant went. Isn't it common sense that they went to the building where the actual event took place in front of? And isn't it common sense that you would have seen that video if there had been a video?"

In fact, there was a video from a surveillance camera in the lobby and the prosecutor had reviewed it before the trial. Nevertheless, it was only years after the verdict—pursuant to a Freedom of Information Law request—that the District Attorney's Office sent defense counsel a copy. The camera recording the video was fixed to the ceiling in the back corner of the lobby at an angle that captures people entering and exiting the lobby, as well as a partial view of the activity in front of the building. On the day of the shooting, the camera recorded what appear to be images of Cream, the victim, and a third individual interacting out front shortly before the shooting. Another individual, who appears to be a delivery person, is seen securing a bicycle outside just as the victim is seen falling to the ground on the sidewalk in front of the entrance. The delivery person then goes into the vestibule and turns to face the street as yet another individual enters the frame, hovers over the prostrate victim, and extends an arm toward the victim before exiting to the right of the frame. A person, presumably Cream, then runs inside the building behind the delivery person.

After receiving the video, defendant moved to vacate his conviction pursuant to CPL 440.10, arguing that the evidence was both material and favorable to the defense and therefore the People's failure to disclose it violated their obligations under Brady v. Maryland , 373 U.S. at 87, 83 S.Ct. 1194. Moreover, defendant argued that the prosecutor's statement to the jury that no video existed compounded the Brady violation and deprived defendant of his right to a fair trial. In response, the People conceded that the prosecutor had seen the video prior to trial but argued that it was not Brady material because the image quality was so poor that it rendered the video useless to the defense. Further, the People maintained that the prosecutor's misstatement in summation did not rise to the level of misconduct warranting a new trial.

Defendant's trial counsel and the prosecutor testified at the hearing on the postconviction motion. Copies of the surveillance video at original and reduced speed, as well as stills from the video found in the prosecutor's file, were introduced at the hearing. Trial counsel for defendant testified that she would have used the video (1) to impeach Cream's testimony; (2) to support a defense that a third party was the shooter; and (3) to identify other potential witnesses. The prosecutor testified that although she had watched the video after presenting the case to the grand jury, she believed it did not constitute Brady material because it did not capture the shooter and the images were too "washed-out" to identify anyone. The prosecutor put the video in a box for "irrelevant" evidence and "forgot about it."

The court denied defendant's motion, concluding that defendant's alternative shooter theories were "highly speculative" and "not supported by a...