People v. Wright

• Decision Date: 21 March 1996
• Citation: 639 N.Y.S.2d 361,225 A.D.2d 430
• Parties: The PEOPLE of the State of New York, Respondent, v. Betty WRIGHT, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 361

639 N.Y.S.2d 361

225 A.D.2d 430

The PEOPLE of the State of New York, Respondent, v. Betty WRIGHT, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 21, 1996.

Nancy D. Killian, for respondent.

Paul Skip Laisure, for defendant-appellant.

Before ELLERIN, J.P., and RUBIN, KUPFERMAN, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered July 17, 1991, convicting defendant, after a jury trial, of murder in the second degree, and sentencing her to a term of 15 years to life, and order, same court and Justice, entered August 15, 1994, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment, unanimously affirmed.

On this appeal defendant's sole claim is that she is entitled to a new trial because she was not provided with copies of certain documents in the Office of the Chief Medical Examiner's ("OCME") file which pertain to the autopsy performed on the decedent in violation of the prosecution's statutory and voluntary disclosure obligations. ¹ Defendant's argument fails, however, because the undisclosed documents were not in the possession or control of the People, who exercised reasonable diligence in carrying out their discovery obligations.

Before perfecting defendant's direct appeal, appellate counsel served a judicial subpoena upon the OCME and obtained the documents at issue on this appeal. Defendant then moved before the trial court to set aside her conviction in a post-judgment motion brought pursuant to CPL 440.10(1)(f), arguing that the People had violated their Rosario, Brady, statutory and voluntary disclosure obligations. The trial court conducted a hearing, and thereafter issued a comprehensive and thoughtful decision that primarily focused on the People's failure to turn over a document known as the case worksheet.

In addition to finding that the case worksheet constituted Rosario material, the court originally held that it should have been disclosed under Brady principles. Although the trial court found that the undisclosed case worksheet was not exculpatory in the classic sense, it was of the opinion that it might have been useful to the defense in cross-examination of the medical examiner. The trial court noted that there was neither bad faith nor inadvertence on the part of the prosecution in the failure to disclose the document. Rather, the prosecution had, in fact, turned over everything that the OCME had provided to it. Construing the then existing precedents, the trial court granted the motion to vacate the judgment.

Subsequent to the trial court's original decision, it was definitively held that the OCME is not a law enforcement agency under the control of the People (People v. Washington, 86 N.Y.2d 189, 630 N.Y.S.2d 693, 654 N.E.2d 967; see also, People v. Smith, 206 A.D.2d 102, 618 N.Y.S.2d 649, affd85 N.Y.2d 1018, 631 N.Y.S.2d 280, 655 N.E.2d 393). The People then moved to reargue the trial court's decision granting defendant's CPL article 440 motion. The trial court granted the motion to reargue, and, upon reconsideration, denied defendant's CPL article 440 motion in its entirety.

The trial court explained that "[a]n essential premise for ... [its original] decision regarding both Rosario and Brady violations was a finding that the People, based upon their discovery obligations, and statutory relationship with the OCME ... were presumed to know and constructively possessed the Case Worksheet which was in the actual possession of the OCME". It held that, in light of the clear holding of Washington, the missing material was clearly not Rosario material. As to whether the document constituted Brady material, the trial court held that because "the trial prosecutor in this case did not in fact know of the Case Worksheet's existence in the deceased's [OCME case] file, however remiss that was, under Washington, that failure did not rise to the level of a Brady violation". The trial court reinstated defendant's conviction. An Associate Justice of this court then granted defendant permission to appeal from the denial of her CPL article 440 motion, and directed that the appeal be consolidated with the defendant's direct appeal.

In her principal brief, defendant attempts to revive her Rosario and Brady argument by distinguishing Washington on the ground that here she voluntarily agreed to participate in an open-file disclosure procedure utilized by the office of the Bronx County District Attorney. This fact alone, however, does not alter the analysis of who had control and possession of the documents for purposes of determining whether they constituted Rosario or Brady material in the first place. Defendant proffers no compelling rationale for permitting such a metamorphosis of what is clearly not Rosario and Brady material under Washington.

Alternatively, defendant argues that the various documents should have been provided pursuant to the Voluntary Disclosure Agreement and the provisions of CPL 240.20. While a copy of an executed Voluntary Disclosure Agreement is not contained in the record on appeal, it is not disputed that defendant opted to participate in the open discovery procedure, with its known advantages of reducing motion practice and expediting discovery (see, People v. Colavito, 87 N.Y.2d 423, 639 N.Y.S.2d 996, 663 N.E.2d 308. A blank copy of the "Bronx County Voluntary Disclosure Agreement" contained in the record provides:

The above-named defendant, having been indicted in Bronx County and wishing to secure discovery of property pursuant to Article 240 of the Criminal Procedure Law, and the District Attorney of Bronx County, wishing to disclose property to the defendant to which he [sic ] is entitled pursuant to this Article, and all parties wishing to dispense with motion papers to effectuate discovery of the prosecutor's case,

NOW, THEREFORE ALL PARTIES AGREE THAT the District Attorney will provide the attorney of record for the defendant:

1) A Voluntary Disclosure Form (VDF) which contains C.P.L. notice provisions, ... and acknowledgement of our duty pursuant to Brady.

2) All items contained in C.P.L. § 240.20 which exist in the instant case.

3) ... [various police reports]

4) Any medical record of the victim relating to the crime charged.

The District Attorney will use all reasonable and diligent efforts to secure these materials and provide them to the defense attorney within 45 days of arraignment....

The defendant will not submit a C.P.L. § 240.20 Demand Letter or a Motion for a Bill of Particulars, or a Discovery Motion, or submit a Subpoena Duces Tecum in connection with this case. He [sic ], however, retains the right to submit a written motion within 10 days after the 45 day period for any item contained in § 240.20 of the Criminal Procedure Law to which he [sic ] has a legal right and was not supplied by the District Attorney....

Defendant argues that, regardless of the lack of an institutional relationship between the OCME and the District Attorney's Office, the People were required to disclose the documents at issue here pursuant to subdivisions 2 and 4 of the Bronx County Voluntary Disclosure Agreement, which, of course, reference and incorporate CPL article 240. In support of her position, defendant points to the Agreement's incorporation by reference of CPL 240.20(2), which requires the People to make "a diligent, good faith effort to ascertain the existence of demanded property and to cause such property to be made available for discovery where it exists but...