People v. Wagstaffe

• Decision Date: 17 September 2014
• Citation: 2014 N.Y. Slip Op. 06217,120 A.D.3d 1361,992 N.Y.S.2d 340
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., respondent, v. Everton WAGSTAFFE and Reginald Connor, appellants.

120 A.D.3d 1361

992 N.Y.S.2d 340

2014 N.Y. Slip Op. 06217

The PEOPLE, etc., respondent,

v.Everton WAGSTAFFE and Reginald Connor, appellants.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 17, 2014.

Beldock Levine & Hoffman, LLP, New York, N.Y. (Myron Beldock and Irving Cohen of counsel), for appellant Everton Wagstaffe.

Davis, Polk & Wardwell, LLP, New York, N.Y. (James W.B. Benkhard, David B. Toscano, Jordan Leigh Smith, and Kevin Van Landingham of counsel), for appellant Reginald Connor.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.

Beldock Levine & Hoffman, LLP, New York, N.Y. (Myron Beldock and Irving Cohen of counsel), for appellant Everton Wagstaffe.

Davis, Polk & Wardwell, LLP, New York, N.Y. (James W.B. Benkhard, David B. Toscano, Jordan Leigh Smith, and Kevin Van Landingham of counsel), for appellant Reginald Connor.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.

PETER B. SKELOS, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ.

Appeals by the defendants, by permission, from an order of the Supreme Court, Kings County (Parker, J.), dated October 28, 2011, which, after a hearing, denied their separate motions pursuant to CPL 440.10 to vacate judgments of the same court (Goldstein, J.) rendered February 16, 1993, and February 22, 1993 (one as to each of them), convicting them of kidnaping in the second degree, upon a jury verdict, and imposing sentences.

ORDERED that the order is reversed, on the law, the defendants' separate motions pursuant to CPL 440.10 to vacate the judgments of conviction rendered against each of them are granted, the indictments are dismissed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent with CPL 160.50.

Just before 7:00 a.m. on January 1, 1992, the police found the body of a 16–year–old homicide victim on a street in a deserted industrial area in the East New York section of Brooklyn. The victim was only partially clothed, and had been stabbed repeatedly, strangled, and beaten. Subsequently, the police arrested the defendants, following their identification by Brunilda Capella, who was under the influence of drugs and alcohol at the time she witnessed the victim being forced into a vehicle. The defendants were both convicted by a jury of second degree kidnaping.

On direct appeal, this Court separately affirmed both judgments of conviction ( see People v. Wagstaff, 219 A.D.2d 690, 631 N.Y.S.2d 410; People v. Connor, 219 A.D.2d 664, 631 N.Y.S.2d 402). Each defendant moved for leave to appeal to the Court of Appeals, and their respective motions were denied ( see People v. Wagstaff, 88 N.Y.2d 996, 649 N.Y.S.2d 403, 672 N.E.2d 629; People v. Connor, 88 N.Y.2d 982, 649 N.Y.S.2d 389, 672 N.E.2d 615).

Subsequently, the defendants separately moved pursuant to CPL 440.10 to vacate their respective judgments of conviction. Among the various grounds raised, they contended that their convictions were obtained by fraud and misrepresentation on the part of the police ( seeCPL 440.10[1][b] ). Specifically, they contended that certain documentary evidence establishes that two police detectives gave false testimony at the Wade hearing ( see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) and at trial, resulting in their convictions. The Supreme Court held a fact-finding hearing with respect to certain issues raised in the defendants' CPL 440.10 motions, but not as to whether the convictions were obtained by fraud and misrepresentation. Following that hearing, the Supreme Court denied the defendants' motions.

On appeal, the defendants continue to advance their arguments pursuant to CPL 440.10(1)(b) and, in addition, contend that the People violated their disclosure obligations pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 with respect to the documents upon which the defendants rely to make the claims of misrepresentation and fraud by the investigating detectives. They contend that, therefore, CPL 440.10(1)(h) provides an equally viable ground for vacating their judgments of conviction, which were “obtained in violation of a right ... under the constitution of this state or of the United States.” As the People correctly note, this contention is unpreserved for appellate review. However, it is closely tied to their contention concerning the alleged falsified testimony, and we exercise our interest of justice jurisdiction to reach it ( seeCPL 470.05[2] ).

At the outset, the Supreme Court improvidently exercised its discretion in denying those branches of the defendants' motions which were pursuant to CPL 440.10(1)(b) by invoking the permissive ground for denial set forth in CPL 440.10(3)(a), and finding that the “defendants could have with due diligence placed on the record before sentencing facts to provide an adequate basis for appellate review, but unjustifiably failed to do so.” There is no indication in the record that the subject documents were disclosed to the defense in time to be used at the Wade hearing; rather, the prosecutor provided documents to the defense on the record at the time of jury selection. Moreover, while it is undisputed that the subject documents were included within the disclosure made during jury selection, the record reveals that the prosecutor delivered the subject documents interspersed throughout a voluminous amount of other documentation, without specifically identifying the documents at issue at the time of the delivery. As a result, the defendants were not afforded an adequate opportunity to develop a factual record for appellate review on direct appeal, and the Supreme Court should have exercised its discretion and reached this issue on the merits ( seeCPL 440.30[2] ).

The People have an obligation to disclose exculpatory evidence, known as Brady material, in their possession which is favorable to the defendant and material to his or her guilt or innocence ( see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215; People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286; People v. Scott, 88 N.Y.2d 888, 890, 644 N.Y.S.2d 913, 667 N.E.2d 923). Such evidence is to be produced regardless of whether a defendant requests the material ( see Strickler v. Greene, 527 U.S. 263, 280–281, 119 S.Ct. 1936, 144 L.Ed.2d 286; People v. Garrett, 106 A.D.3d 929, 964 N.Y.S.2d 652, revd. on other grounds,23 N.Y.3d 878, ––– N.Y.S.2d ––––, ––– N.E.3d ––––, 2014 N.Y. Slip Op. 04876, 2014 WL 2921398 [2014] ). The prosecutor's duty to exchange Brady material extends to the disclosure of evidence that can be used to impeach the credibility of a witness for the People whose testimony may be determinative of the defendant's guilt ( see Giglio v. United States, 405 U.S. 150, 154–155, 92 S.Ct. 763, 31 L.Ed.2d 104; People v. Baxley, 84 N.Y.2d 208, 213, 616 N.Y.S.2d 7, 639 N.E.2d 746). Such material is to be turned over to the defendant in time for him or her to use it in a meaningful fashion during cross-examination or as evidence during his or her own case ( see e.g. People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349).

In order to establish a Brady violation, a defendant must prove: (1) the evidence at issue is favorable to him or her; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued because the suppressed evidence was material ( see Strickler v. Greene, 527 U.S. at 281–282, 119 S.Ct. 1936; People v. Hayes, 17 N.Y.3d 46, 50, 926 N.Y.S.2d 382, 950 N.E.2d 118; People v. Fuentes, 12 N.Y.3d at 263, 879 N.Y.S.2d 373, 907 N.E.2d 286; People v. LaValle, 3 N.Y.3d 88, 110, 783 N.Y.S.2d 485, 817 N.E.2d 341). As to the element of materiality, where there was only a general request by the defendant at the time of trial for exculpatory material, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different ( see...