"The People are fully aware of their Brady obligations and will comply with the same."

Don't bet on it. Many of the same prosecutors who offer this rote recitation meant to placate the defendant and the court, go on to demonstrate an affirmative unfamiliarity with their Brady obligations.

The problem many be one of semantics. "Brady material" has become a shorthand reference for "those materials required to be disclosed under Brady and its progeny." If "Brady material" refers to only those items described in the Brady decision, such a cramped reading allows the prosecutor to ignore any case that came after, and built upon, Brady. On the other hand, if "Brady material" is given its commonly-understood meaning, then many prosecutors either have not read, or if they have, intentionally misrepresent to the court, the obligations imposed by those "progeny" cases. The ability to sing the song ("Here's a story, of a man named . . . ") does not an awareness of Brady make.

For example, many prosecutors argue that Brady is inapplicable to impeachment material or any “bad act” information not resulting in a conviction. This argument is unsupported by and directly contrary to over 30 years of New York State and federal law (Youngblood v. West Virginia, 547 U.S. 867 [2006]; Kyles v. Whitely, 514 U.S. 419 [1995]; Wood v. Bartholomew, 516 U.S. 1 [1995]; United States v. Bagley, 473 U.S. 667 [1985]; United States v. Agurs, 427 U.S. 97 [1976]; Brady v. Maryland, 373 U.S. 83 [1963]; People v. Baxley, 84 N.Y.2d 208, 213 [1994], rearg. dismissed 86 N.Y.2d 886 [1995]; People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Novoa, 70 N.Y.2d 490 [1987]; People v. Harris, 35 A.D.3d 1197 [4th Dept. 2006]; People v. Monroe, 17 A.D.3d 863, 864 [3rd Dept. 2005]; People v. Valentin, 1 A.D.3d 982 [4th Dept. 2004], lv. denied 1 N.Y.3d 602 [2004]).

In fact, Brady material unquestionably includes evidence that detracts from the credibility or probative value of testimony or evidence offered by the prosecution (Giglio v. United States, 405 U.S. 150 [1972]; Thomas v. United States, 343 F.2d 49 [9th Cir. 1965]; People v. Novoa, supra), including impeachment material (United States v. Bagely, 473 U.S. 667 [1985]), as well as full details concerning any cooperation agreement between the government and a witness (People v. Steadman, supra; People v. Cwikla, 46 N.Y.2d 434, 441-442 [1979]; People v. May, 228 A.D.2d 523 [2nd Dept. 1996]; People v. Grice, 188 A.D.2d 397 [1st Dept. 1992]; see also, Shih Wei Su v. Filion, 335 F.3d 119 [2nd Cir. 2003]).

The prosecution’s obligation of disclosure under Brady requires “. . . more than just a boilerplate, cursory review and response. It must be a pro-active, vigorous attempt to respond . . .” (People v. Ariosa, 172 Misc.2d 312 [Co. Ct. Monroe Co. 1997]; People v. Novoa, supra; see also, People v. Simmons, 36 N.Y.2d 126, 132 [1975]; Kyles v. Whitley, supra). Along these lines, it is not for the People to decide whether exculpatory evidence is reliable; that determination is for defense counsel alone (People v. Jackson, 198 A.D.2d 301 [2nd Dept. 1993]) and neither the prosecutor nor the court may substitute their judgment of the value of the evidence for that of defense counsel (Dennis v. United States, 384 U.S. 855, 875 [1966]; People v. DaGata, 86 N.Y.2d 40 [1995]). In this regard, any close questions should be resolved in favor of disclosure (United States v. Agurs, 427 U.S. 97, 108 [1976]). The Court of Appeals has cautioned the prosecution “to err on the side of disclosure where exculpatory value is debatable” (People v. Vilardi, 76 N.Y.2d 67, 77 [1990]).

Instead, prosecutors often seek to insulate their witnesses from relevant cross-examination, thereby presenting the jury with an artificially sanitized view of the witnesses’ credibility by watering down the defendant’s Sixth Amendment right to meaningful confrontation and the effective assistance of counsel.

When arguing against their obligation to make such disclosures prosecutors will often complain (either expressly or by implication) that compliance with defendant's requests would result in unfairness to the People - "it's not a level playing field." Of course, it was never meant to be.

For example, unlike those restrictions applicable to a defendant, there is no prohibition against demonstrating the propensity of a witness (see, People v. Davis, 44 N.Y.2d 269, 274 [1978]; People v. Mayrant, 43 N.Y.2d 236, 239 [1977]; People v. Sorge, 301 N.Y. 198, 200 [1950]). Thus, evidence of the uncharged immoral or criminal acts of a non-defendant witness is admissible and may not be excluded if probative of a matter in issue, unlike proof of other bad acts employed to demonstrate the character of a defendant (People v. Jackson, 39 N.Y.2d 64 [1976]; People v. Fiore, 34 N.Y.2d 81 [1974]).

Likewise, there is no Molineux-type restriction on introducing evidence of the criminal acts of a witness (see, e.g., People v. Morgan, 172 A.D.2d 312, 313 [1st Dept. 1991]; People v. Molineux, 168 N.Y. 264 [1901]). While such evidence is relevant and admissible, the admission of such evidence against a defendant is “objectionable because juries may attribute too much significance to it” (People v. Lewis, 69 N.Y.2d 321 [1987]). Thus, this evidence is not admissible against a defendant because of the danger that it might “result in the proof of the prior offenses being taken by the jury as justifying a condemnation of the defendant irrespective of his guilt of the offense charged” (Id.). These policy considerations are not applicable to the admission of “propensity” or “other bad act” evidence against a witness. Defendant’s right to present relevant evidence at trial, guaranteed by the United States and New York State Constitutions compels at minimum that the defense be permitted to offer such evidence and elicit a ruling from the Court as to it’s relevance in light of the other facts presented at trial (see, e.g., Chambers v. Mississippi, 410 U.S. 284 [1973]).

To those courts disinclined to wade into Brady disputes and the necessarily attendant and messy allegations of prosecutorial negligence, sharp practice, or affirmative misrepresentation or concealment, Justice Frank offered some, well, frank guidance:

"If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it . . . If the prosecutors win verdicts as a result of ‘disapproved’ [conduct], we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court – recalling the bitter tear shed by the Walrus as he ate the oysters – breeds a deplorable cynical attitude towards the judiciary" (United States v. Antonelli Fireworks Co., 155 F.2d 631, 651 [2nd Cir. 1946] [Frank, J., dissenting]).

Brady and pre-trial disclosure

Some prosecutors argue (without citation to any authority, because there is none) that Brady material not contained in a document memorialized by a witness himself (such as the witness's grand jury testimony or statements to the prosecutor) need not be disclosed prior to the witness's testimony at trial. In United States v. Sablan & Guerrero, 2009 WL 3379011 (E.D. Cal. 2009), a recent federal homicide prosecution, the defendants requested pretrial discovery of just such Brady material. In that case the trial court granted the defense request for pretrial disclosure of Brady material, rejecting the government's argument that Brady material need not be turned over prior to the witness testifying as long as the material was also considered discoverable pursuant to the Jencks Act (the federal equivalent of the Rosario rule and CPL 240.45 discovery). The court held that Brady obligations are not altered by the fact that such information is contained in statements or grand jury testimony and thereby also subject to disclosure pursuant to some other obligation, such as the Jencks Act.

Prosecutorial attempts to conceal the information that must eventually be turned over as Brady material until the last possible moment have been criticized as gamesmanship seeking to prevent effective defense use of such information or, at minimum, to make such use exponentially more difficult, contrary to the direction that such disclosure be made in time for the defendant to use it effectively (see, People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Leavy, 290 A.D.2d 516 [2nd Dept. 2002]; see also, Leka v. Portuondo, 257 F.3d 89 [2nd Cir. 2001]).

Objection Not Required Where Prosecution Switches Theories

In People v Gunther (__AD3d__, 2009 NY Slip Op 08656 [11/20/09]) the Fourth Department re-affirmed the rule that a person may not be convicted of a crime based upon a theory different from that charged in the indictment. In Gunther, the defendant was charged with Sex Abuse in the First Degree. for allegedly touching the complainant's vagina with his penis. However, the testimony was that the defendant touched the complainant's buttocks and leg and rubbed his penis on her back. Anyone of these acts could have supported a conviction for Sex Abuse in the First Degree. However, the Court held that "it is well established that a defendant cannot be convicted of a crime based upon evidence of an 'uncharged theory'(People v Grega, 72 NY2d 489, 496; see People v Greaves, 1 AD3d 979; see generally People v Bradford, 61 AD3d 1419, 1420-1421)."

Perhaps more importantly , the Court held that "Defendant was not required to preserve his contention for our review inasmuch as '[t]he right of an accused to be tried and convicted of only those crimes and upon only those theories charged in the indictment is fundamental and nonwaivable' (People v Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711)." Thus, the conviction on that charge was reversed absent an objection on this ground.

Benefits & Brady

In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants' motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that

In their role as public officers, prosecutors "must deal fairly with the accused and be candid with the courts" (People v Steadman, 82 NY2d 1, 7 [1993]). This duty requires prosecutors not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness. Where a prosecutor elicits or fails to correct such inaccurate testimony, reversal and a new trial are necessary unless there is no "reasonable possibility" that the error contributed to the conviction (citations omitted).

Yet, the trial prosecutor had personally been involved in conveying a favorable plea offer which had not been disclosed to the defense. The prosecutor failed to correct the witness's misleading testimony and, in addition, compounded these errors by repeating and emphasizing the misinformation during summation. In reversing, the Court held that

Unlike the Appellate Division, we believe that there is a reasonable possibility that these errors affected the jury's verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). At trial, only two witnesses connected defendants to the crime... [One] had previously committed perjury and was a self-described drug kingpin and murderer. His veracity was further called into question given that he was facing life imprisonment on both state and federal charges when he agreed to testify against defendants. [The other witness's] testimony was therefore crucial. But the false testimony elicited by the prosecutor regarding the benefits extended may well have impacted the jury's perception of [that witness's] credibility. By their very nature, benefits conferred on a witness by a prosecutor provide a basis for the jury to question the veracity of a witness on the theory that the witness may be biased in favor of the People. For this reason, it is important that witnesses provide truthful testimony when questioned about the receipt of such benefits, and the People must be vigilant to avoid misleading the court or jury. Rather than correct the inaccurate testimony, the prosecutor here exacerbated the problem during her closing comments.

Thus, the Court of Appeals has again sent a message to both prosecutors and lower courts. The Court's holding in Vilardi means what it says: Harmless error anaylsis will not save convictions, even convictions for serious crimes, where there is a reasonable possibility that Brady violations (Brady v Maryland, 373 U.S. 83 [1963]) affected the jury's verdict. (See also its decision last year in People v Hunter, 11 NY3d 1 [2008], discussed here).

Can New York Police Order Blood Draw from Suspect Outside New York?

In People v Lerow (_ AD3d __, 2009 NY Slip Op 08648 [4th Dept 12/20/09]) the Fourth Department decided an apparent issue of first impression for a New York appellate court: Can a New York police officer lawfully to direct the withdrawal of blood from a suspect who is physically located outside of the state, where the supsect had been involved in a vehicular accident in New York State and transferred to another state (in this case Pennsylvania. For an excellent summary and analysis of the Court's holding that, under the circumstance the officer had the authority to order the blood draw even though he was out-of-state, see this entry in the blog, New York Criminal Law and Procedure.

Consent to What?

A person's consent to do one thing is not a blanket consent to something else. In People v Gayden (__AD3d__, 2009 NY Slip Op 08332 [4th Depth 11/13/09]), the Fourth Department reminded both police and prosecutors that a person's consent to go one place with the police is not consent to also go to the police station with them. After the defendant agreed to show the police the location where he was allegedly robbed, and accompanied the officers to that location, the officers then transported defendant to the police station, whereupon they informed him that they did not believe his version of the events. Defendant them waived his Miranda rights, and in response to police questioning, gave inculpatory statements that he moved to suppress.

The Fourth Department held that

Even according great weight to the determination of the suppression court, "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761), we conclude that the evidence at the suppression hearing does not support the court's determination that defendant voluntarily accompanied the investigating officers to the police station and thus that he was not in custody when he made the statements (cf. People v Yukl, 25 NY2d 585, 592, cert denied 400 US 851). "In determining the scope of consent, a suppression court must look to the exchange between the parties——both the request and the response——and any attendant circumstances" (People v Gomez, 5 NY3d 416, 420). Although it is undisputed that defendant agreed to accompany the investigating officers to the intersection where he allegedly had been shot, the People failed to present any evidence at the suppression hearing on the issue whether defendant, who had no other means of transportation to travel back to his home, in fact consented to accompany the officers to the police station (see People v Rosa, 30 AD3d 905, 908, lv denied 7 NY3d 851). Therefore, viewing the circumstances in the light of " what a reasonable [person], innocent of any crime, would have thought had he [or she] been in the defendant's position,' " we agree with defendant that his detention was in fact the equivalent of an arrest, requiring probable cause (citations omitted).

Not Every Document Kept By A Business Qualifies as a Business Record Under CPLR 4518

In People v Manges ( __ AD3d__, 2009 NY Slip Op 08258 [4th Dept 11/13/09]), the Court reversed and dismissed convictions for Criminal Possession of a Forged Instrument and Grand Larceny which were predicated on a computer printout of electronic data that was displayed on a computer screen when defendant presented a check, the allegedly forged instrument, to a bank teller, that should not have been admitted into evidence.

The People failed to establish that the printout falls within the business records exception to the hearsay rule (see CPLR 4518 [a]), which applies here (see CPL 60.10). The People presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business at the time of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified the computer screen printout testified that "anyone [at the bank] can sit down at a computer and enter information." Because the computer screen printout was the only evidence establishing the identity of the purported true account owner upon which the check was drawn, we conclude that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495).