The People, Appellant,v.Mark Garrett, Respondent.

Brief

N.Y.June 3, 2014

To Be Argued By: ANNE E. OH Time Requested: Fifteen Minutes COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Court of Appeals Case Appellant, No. APL-2013-00232 - against - App. Div. Case No. 2010-04483 MARK GARRETT, Suffolk Co. Indictment No. 1781-98 Defendant-Respondent. --------------------------------------------------------------x BRIEF OF APPELLANT THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Appellant Criminal Courts Building 200 Center Drive Riverhead, New York 11901 (631) 852-2500 ANNE E. OH Assistant District Attorney Of Counsel TABLE OF CONTENTS Page Table of Authorities .......................................................................................... i Statement Pursuant to CPLR 5531 ................................................................... 1 Preliminary Statement ....................................................................................... 2 Introduction ....................................................................................................... 3 Questions Presented .......................................................................................... 5 Jurisdictional Statement .................................................................................... 6 Statement of Facts ............................................................................................. 7 Point One ........................................................................................................... 26 THE APPELLATE DIVISION ERRED AS A MATTER OF LAW WHEN IT DETERMINED THAT THE MERE FILING OF A CIVIL COMPLAINT, WHICH IS PURELY HEARSAY, TRIGGERED THE PEOPLE’S OBLIGATION UNDER BRADY V MARYLAND. Conclusion ........................................................................................................ 46 Relief Requested ............................................................................................... 47 Certification ...................................................................................................... 48 i TABLE OF AUTHORITIES Page United States Supreme Court Brady v Maryland, 373 U.S. 83, 87-88 (1963) ............................. 10,18,26,27,28 Giglio v United States, 405 U.S. 150, 154-55 (1972) ................................. 23,28 Kyles v Whitley, 514 U.S. 419 (1995) ........................................... …4,5,24,41,42 Federal Court Garrett v Smith, __FSupp2d__ 2006 WL 2265094 (EDNY 2004) .................. 18 United States v Le Roy, 687 F2d 610, 618 (2d Cir 1982) ................................. 29 Court of Appeals People v Bryce, 88 NY2d 124, 128 (1996) ............................................. ….27,28 People v Cascone, 185 NY 116 (1906) ............................................................ 31 People v DePasquale, 54 NY2d 693 (1981) ..................................................... 33 People v Doshi, 93 NY2d 499, 506 (1999) ....................................................... 29 People v Ennis, 11 NY3d 403 (2008) ......................................................... .35,36 People v Fuentes, 12 NY3d 259 (2009) ................................................. 23,28,35 People v Garrett, 3 NY3d 674 (2004) .............................................................. 17 People v Gissendanner, 48 NY2d 543 (1979) ............................................. 33,34 People v Hayes, 17 NY3d 46 (2011) ...................................................... 28,29,42 People v Hunter, 11 NY3d 1 (2008) ............................................. 35,36,37,38,41 People v Kelly, 62 NY2d 516, 520 (1984) ........................................................ 42 People v Koslowski, 11 NY3d 223 (2008) ........................................................ 34 People v Mandel, 48 NY2d 952 (1979) ............................................................ 38 People v Miller, 91 NY2d 372 (1998) .............................................................. 31 People v Morrison, 194 NY 175 (1909) ........................................................... 31 People v Novoa, 70 NY2d 490, 498 (1987) ...................................................... 43 People v Reedy, 70 NY2d 826 (1987) .............................................................. 29 People v Rodriguez, 38 NY2d 95 (1975) .......................................................... 31 People v Santorelli, 95 NY2d 412 (2000) .............................................. 28,29,42 People v Scott, 88 NY2d 888 (1996) ......................................................... ..35,36 People v Vilardi, 76 NY2d 67, 77 (1990) ..................................... ………....28,43 People v Wright, 86 NY2d 591 (1995) ........................................................ 28,43 ii Page Appellate Division Kourtalis v City of New York, 191 AD2d 480 (2d Dept 1993) ......................... 32 People v Andrew, 54 AD3d 618 (1st Dept 2008) ............................................. 32 People v Ducret, 95 AD3d 636 (1st Dept 2012) ............................................... 32 People v Garrett, 8 AD3d 676 (2d Dept 2004) ................................................ 17 People v Garrett, 49 AD3d 779 (2d Dept 2008) .............................................. 18 People v Garrett, 106 AD3d 929 (2013) ................................... 3,23,24,26,33,39 People v Johnson, 226 AD3d 828 (3d Dept 1996) ...................................... 21,43 People v Kinney, 103 AD3d 563 (1st Dept 2013) ............................................ 43 People v Longtin, 245 AD2d 807 (3d Dept 1997) ............................................ 43 People v Martin, 240 AD2d 5, 12 (1st Dept 1998) .......................................... 44 People v Roberson, 276 AD2d 446 (1st Dept 2000) ........................................ 21 People v Vasquez, 214 AD2d 93 (1st Dept 1995) ....................................... 21,43 Statutes Federal Rules of Civil Procedure, Rule 4(b) ..................................................... 30 42 U.S.C. §1983 ................................................................................................ 30 Civil Rights Law §50-a(2) ................................................................................ 34 COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Court of Appeals Case Appellant, No. APL-2013-00232 - against - App. Div. Case No. 2010-04483 MARK GARRETT, Suffolk Co. Indictment No. 1781-98 Defendant-Respondent. --------------------------------------------------------------x STATEMENT PURSUANT TO CPLR 5531 1. The indictment number in the Suffolk County Court was 1781-98. 2. The full names of the original parties were The People of the State of New York against Mark Garrett. 3. This action was commenced in the County Court, Suffolk County by the filing of Defendant-Respondent’s CPL §440.10 motion to vacate the judgment of conviction. 4. Defendant-respondent was originally charged under Indictment No. 1781-95 with three counts of Murder in the Second Degree (PL §125.24 [1,2,3]). Defendant-respondent was convicted, after jury trial, of two counts of Murder in the Second Degree – Depraved Indifference Murder and Felony Murder (PL §125.25[2&3]). He was sentenced to two concurrent indeterminate terms of twenty-five years to life imprisonment. 5. This appeal is from the Order of the Appellate Division reversing the trial court’s denial of defendant-respondent’s post-conviction motion dated May 15, 2013. On August 19, 2013, the Honorable Victoria A. Graffeo granted leave to appeal to this Court. 2 PRELIMINARY STATEMENT This is an appeal by appellant, the People of the State of New York, from an order of the Appellate Division, dated May 15, 2013, reversing the denial by the County Court, Suffolk County (Hudson, J.), of a motion to vacate the judgment of conviction. Defendant is presently incarcerated. At the jury trial that occurred before the Supreme Court, Suffolk County (Copertino, J.), in April and May 2000, and at sentence on May 2, 2000, defendant was represented by Mr. Daniel Rudansky, Esq. On appeal to the Appellate Division, Second Department, and in this appeal, defendant-respondent was and is represented by Mr. Stephen A. Feldman, Esq. On appeal to the Appellate Division, Second Department, and in this appeal, the People of the State of New York were and are represented by the Honorable Thomas J. Spota, Esq., District Attorney of Suffolk County. 3 INTRODUCTION The Appellate Division’s decision in this case stretched this Court’s precedents as to what constitutes Brady beyond any requirement of materiality. The mere filing of a civil complaint, in an unrelated matter, against a testifying police officer should not be construed as Brady material, regardless of the fact that it involves a police officer. Even if the accusations in the civil complaint bear surface similarity to a defendant’s trial claims, this does not convert the naked allegations in the civil complaint into material for impeachment purposes under the Brady doctrine. Fundamentally, a civil complaint is nothing more than an unsubstantiated allegation, which to be filed does not even require that it is based on good faith. It is hearsay by definition and the mere filing of such accusations does not establish the existence of material evidence, about which there could be a duty to disclose – if within the prosecution’s control. The Appellate Division erred, as a matter of law, when it held that a civil complaint “clearly fell within the ambit of the prosecutor’s Brady obligation because it constituted impeachment evidence.”1 A mere accusation against a witness has never been deemed by this Court to be evidence. Also, the Appellate Division appears to have expanded the United States Supreme Court’s holding in 1 People v Garrett, 106 AD3d 929 (2d Dept 2013). 4 Kyles v Whitley2 beyond what has been previously held by this Court. The Appellate Division can be read to require that prosecutors are now obligated to affirmatively seek out any and all formal allegations of bad acts regarding police officers involved in the criminal proceeding, regardless of whether such allegations are substantiated or unfounded, and despite the fact that the allegations have arisen in an unrelated matter. Aside from rendering the requirement of materiality as a basis for triggering Brady obligations non-existent, imposing a duty to disclose under such circumstances also imposes a new obligation to obtain information wholly removed from the police investigatory function where imputation currently rests. Such a framework is an unprecedented expansion of the imputation doctrine under Kyles and also contradicts the jurisprudence of this Court. We respectfully urge the Court to reverse the Appellate Division’s decision and affirm the trial court’s ruling which was consistent with the prevailing law of New York State. 2 Kyles v Whitley, 514 U.S. 419 (1995). 5 QUESTIONS PRESENTED 1. The People’s Brady obligations are triggered by its possession or control over favorable and material evidence. Can a prosecutor’s alleged failure to disclose knowledge of a civil complaint, filed in federal court against a prosecution witness regarding an unrelated criminal matter, even be deemed as “suppressed by the prosecution” where the People have no knowledge of the existence of such lawsuit? 2. Under Kyles v Whitley, a prosecutor is imputed to know of evidence gathered by the police during the investigation and prosecution of the case. Did the Appellate Division err, as a matter of law when imputed upon the People a duty to know of the existence of a civil complaint filed in a federal court on an unrelated criminal matter? 3. In a case involving a general request for disclosure, a Brady violation occurs only where there is a showing that there was a “reasonable probability” that a defendant’s possession of the non-disclosed evidence would have resulted in a different outcome. On the facts of this case, did the Appellate Division err as a matter of law when it held that there was a “reasonable probability” that there would have been a different outcome if defendant had knowledge of the civil complaint? 6 JURISDICTIONAL STATEMENT This is an appeal from an Order of the Appellate Division, Second Department, pursuant to CPL §470.35(2)(a). 1. A civil complaint that is filed as a public document is not within the “possession, custody or control” of the prosecution (A48). 2. Schroeter’s civil complaint was not material and the reasonable probability standard was not met in this case (A19). 3. A prosecutor is not constructively aware of documents pertaining to a police witness that is unrelated to a case on trial unless there exists some reason to know of its existence and believe that it contains relevant information (A49). 7 STATEMENT OF FACTS Factual Background: The Crime On July 18, 1998, a badly decomposed body was discovered in Ora Garrett’s backyard. The maggot-infested corpse was contained within a bundle of bed sheets, garbage bags and was bound by what appeared to be electrical wiring. The body was later identified as LC, age 14 (A521; T500),3 who went missing on July 6, 1998. Defendant immediately became a suspect on the night of the discovery when LC’s mother, JC, advised police that LC was missing and that defendant was the last person seen with her (A510-11; T489-90 (A664; T856). Defendant knew LC because LC’s mother, JC, was dating his brother, Frank Garrett. Defendant even previously stayed at JC’s house for several weeks in June 1998, but was asked to leave in early July after he attempted to disrupt JC’s relationship with his brother (A627-31; T280-84). LC was last seen alive by her family on July 6, 1998 (A634; T287) (A645; T337). She was with her brothers at her home when defendant came to the house to speak with LC, who left immediately with defendant. She never returned and 3 Numbers in parentheses following “A” refer to the page in the Appendix filed with this Brief. Likewise, numbers in parentheses following “T” refer to the page in the transcript from the trial held by the Supreme Court, Suffolk County (Copertino, J.) on April 11-14, 17-19, 24-28, 2000 and May 2, 2000. 8 her mother filed a missing persons report two days later (A636; T289) (A644-45; T336-7) (A647-49; T359-61). The circumstantial case supporting defendant’s guilt was strong. LC’s decomposing body was discovered on the tree line of defendant’s mother’s (Ora Garrett) property – a place where defendant often and recently stayed. When discovered, LC was wrapped with sheets and plastic bags. Underneath this, she was bound and tied with unique black electrical wiring (A504-09; T483-88) (A521; T500). Subsequent investigation revealed that the sheets used to bundle LC matched ones contained in Ora Garrett’s linen closet. Notably, after LC’s disappearance on July 6, defendant never returned to his mother’s house. Instead, officers finally found defendant on July 23, 1999, hiding out in an unoccupied residence. His bedding and belongings were all located in an inside hallway – away from the view of any outside windows (A529-30; T508-09) (A533; T512). Defendant was arrested upon a parole warrant and brought to the Homicide Bureau. After his arrest, defendant ultimately confessed to the crime. He provided an oral confession and a written one in which he stated: At my mother’s house, [LC] and I talked some more. I wanted to have sex with her and I was grabbing at her chest and she was pulling away. She even got away from me but I was able to get a hold of her again. She was saying things but I don’t remember what it was. I remember grabbing her tight around her chest and lifting her up off the ground. I did that a lot of times. At one 9 point I had her in a full nelson but actually I was squeezing her around the chest…; and I wanted to have sex with her but she couldn’t calm down. I was squeezing her tight. I may have gotten too rough. I might have just snapped, I don’t know. [LC] went limp in my arms (A578; T556). He also provided detectives with a sketch of the crime scene and marked several crime scene photographs with depictions of how he committed the murder (A582- 90; T560-68) (A595-602; T573-80). With Ora Garrett’s consent, crime scene investigators retrieved electrical wiring from the basement and sheets from her linen closet (A615; T593) (A620; T598) (A653; T754). Forensic testing confirmed that the wire used to bundle up LC’s body and the wire found in Ora Garrett’s basement “were consistent in structure” and “originated from a common origin” (A657; T863). Also, the sheet used to wrap LC’s body and the sheet seized from Ora Garrett’s linen closet also came from a “common set or common origin” (A660-61; T866-67). The Indictment Under Suffolk County Indictment Number 1781-98, a Suffolk County Grand Jury indicted defendant for three counts of Murder in the Second Degree. The Discovery Demand On August 30, 1999, the defense filed a Demand for Discovery (A107-116), which included a general demand that stated: 10 31. Furnish defendant, now and on a continuing basis, all evidence material, and information known to the prosecutor, or by due diligence could be learned from other government agents or prospective witnesses in the case, which may tend to exculpate the defendant, either by indication of innocence or by potential impeachment of a prosecution witness, within the meaning of Brady v Maryland, 373 U.S. 83 (1963); People v Wright, 74 Misc 419 (1973) (A115). The Pretrial Hearing In November 1999, the County Court, Suffolk County (Pitts, J.) held a Dunaway/Huntley hearing to determine whether probable cause existed for defendant’s arrest and the admissibility of his statements (A308-09; H1-2).4 Detectives Vincent O’Leary and Eugene Walsh testified on behalf of the prosecution (A320; H13) (A457; T230) (A468; H687). According to their testimony, defendant was arrested on July 23, 1998, under authority of a warrant issued by the New York State Department of Parole issued on June 17, 1998 (A331-32; H24-25) (A334; H27). Defendant was on parole and closely supervised by a “special offender unit that only monitors high profile cases and violent offenders” (A470; H665). Defendant’s criminal history included arrests for Attempted Murder and Rape in the First Degree (A331-32; H24-25). 4 Numbers in parentheses following “H” refer to the page in the transcript from the pretrial hearing conducted before the County Court, Suffolk County (Pitts, J.), on November 9, 10, 12, 15, 16, 18, 23 and 30, 1999. 11 The prosecution witnesses testified about the substantial evidence incriminating defendant as LC’s murderer. Defendant was the last person seen with LC. He was “on the run from parole” and had not returned to the neighborhood since her disappearance (A324-25; H17-18). Her body was discovered on defendant’s mother’s property and wrapped with materials that appeared to originate from defendant’s mother’s home – a place where defendant had stayed in the past (A325-26; H18-19) (A328; H21). The relationship between LC’s mother and defendant was a negative one – just two days before LC’s disappearance, defendant and LC’s mother were involved in an argument (A332; H25). The prosecution witnesses also testified about the events leading to defendant’s confession. After his arrest, detectives placed defendant in an interview room in the Homicide Bureau. Defendant was immediately advised of his constitutional rights and defendant waived each right by memorializing his consent with his initials. Defendant also consented to a search of the empty house in which he was arrested (A335-44; H28-37) (A419-21; H254-56) (A425-26; H260-61). Initially, defendant’s responses to the police inquiries were vague and inconsistent. But when confronted with his inconsistencies, defendant confessed to the murder (A368-72; H61-65). Ultimately, defendant agreed to give a written 12 statement so he was, again, advised of his constitutional rights, which defendant waived. When the statement was completed, defendant read it, corrected and signed it (A374-85; H67-78). Defendant also provided the detectives with sketch of the crime scene and marked photographs depicting how LC’s death occurred (A404-06; H97-99) (A407-11; H100-104) (A462-65; H235-38). Lastly, defendant signed a Video Refusal Form in which he declined to videotape his confession (A411-15; H104-108). Throughout the entire interview, defendant was not restrained with handcuffs (A336; H29). Detectives also repeatedly interrupted the questioning in order to provide defendant the opportunity to use the bathroom and take refreshment, eat meals and drink beverages (A373-74; H66-67) (A395-96; H88-89) (A405; H98) (A410; H103) (A459; H232) (A432; H267) (A441; H276) (A446; H281). At the hearing, during the cross-examination of Detective Samuel DeJesus, defendant’s attorney attempted to impeach the detective regarding his involvement in an unrelated case: Q: Detective, were you involved in the James Halverson homicide case? MR. AHEARN (The prosecutor): What? A: No. Q: Was Detective O’Leary involved in that case? 13 MR. AHEARN: I’m going to object, Your Honor. I don’t see the relevance if he was involved. It’s a totally separate homicide case. THE COURT: Mr. Rudansky, the relevance. MR. RUDANSKY: Yes. The relevance is that, Judge, that case was a case involving a false confession. There are two individuals who were arrested by – and then unarrested and – I have the – Actually, it’s almost like a carbon copy of this case in terms of paperwork. I have the Prisoner Activity Log and I have the signed confessions and – with cross-outs, with the initials and it was also false. So I just want to know who – I’m going to make an application to you, Judge, to find out whether any of these detectives were involved in this other case. So I figured I will just start right now with this detective. THE COURT: Well, there was an answer to himself. And as to the other detectives, the objection is sustained (A176-77; H558-59). The defense never cross-examined Detective O’Leary regarding any unrelated criminal matter during the pretrial hearing. Defendant presented evidence during the hearing as well. Defendant denied that he ever confessed to the murder and claimed he was coerced into signing a confession that the detectives concocted. Defendant testified on his own behalf (A181; H306) and called several other witnesses including Detectives Samuel DeJesus and Pasquale Albergo, Police Officer Anthony Mayers, Judith O’Neill and Dr. Peter Badmajew (A472; H725). 14 According to defendant, on the morning of his arrest, he woke up to police officers standing over him with their guns drawn. They immediately handcuffed him and transported him to “some type of headquarters,” dressed solely in his underwear (A180-87; H305-12). They took him into a small room where he was handcuffed, with arms behind his body, to a chair (A189; H314). They did not identify themselves but merely told him that “we have a warrant for your arrest for parole and when they can’t find you they send us to find you” (A190; H315). Defendant maintained that the officers did not read him his rights. Instead, they gave him a copy of a rights card and told him “[i]t doesn’t make a difference because you’re just here on a parole warrant” (A190-92; H315-17). Initially, the interview focused on information he previously discussed with his parole officer. But soon, the conversation became “accusatory” when the officers began to question him about LC’s disappearance (A197-202; H322-27) (A231-38; H356- 63). Defendant further claimed that he never confessed to the murder; instead, the officers coerced him into agreeing with a confession that they concocted. When defendant initially denied this account, one unnamed officer put his foot between defendant’s legs and squeezed his testicles. Other officers also began to slap defendant in the head and shock him with a stun gun on his back and his legs. They called him a “nigger” and threatened to psychologically traumatize 15 defendant’s daughter by showing her pictures of LC. Finally, defendant relented and agreed to sign the confession, draw a sketch and mark the crime scene photographs (A270-76; H395-401). Defendant, who testified that he suffered from Graves’ disease, also claimed that the officers refused to give him his medication and this deleteriously affected his physical and emotional condition. The police also denied him food until after he confessed (A281-94; H406-19). Defendant attempted to substantiate his claims of coercion and police brutality, but his case was unpersuasive. First, Nurse O’Neill from the Suffolk County Jail would not characterize photographs depicting scratches on defendant’s back and neck as evidence of wounds from a stun gun and unequivocally testified that there was “no electrical component” to the injuries that defendant contended were caused by a stun gun. Instead she described the injuries, in layman’s terms, as a “scratch” (A474-77; H602-05). Second, the examining doctor from the jail categorically denied that defendant was suffering from depression or paranoia as a result of a thyroid imbalance resulting from his lack of medication. Moreover, the doctor rejected the defense theory that a hormonal balance resulting from a lack of medication would result in making defendant “more susceptible to being forced into doing things he might otherwise not want to do” (A479-81; H648-650). On December 16, 1999, the County Court, Suffolk County (Pitts, J.) rejected defendant’s claims and denied defendant’s motion to suppress. 16 The Trial In April and May 2000, the Supreme Court, Suffolk County (Copertino, J.), conducted a jury trial. Defendant did not testify. During the cross-examination of Detective Vincent O’Leary, the defense renewed its attempt to cross-examine regarding evidence relating to the unrelated Halverson case: Q: Did you ever work on Sergeant Doyle’s team? A: Yes, I did. Q: Did you work the Halverson case? A: No, I did not. Q: Are you familiar with that case? A: Not really, sir. Q: Well, you’re familiar with the fact that two detectives in that case falsely – MR. AHEARN: Objection, Your Honor, anything to do with the Halverson case. He has nothing to do with it and – I don’t see the relevance. THE COURT: What’s the relevancy? … MR. RUDANSKY: Judge, in that particular case, and there are other, there were two statements; two confessions, actually, that were taken from two individuals who admitted murdering a jogger and it turned out that they both confessed falsely and they were unarrested. THE COURT: Oh, you’re trying to show – no, the objection is sustained. MR. AHEARN: There’s nothing to – even to do with this case. THE COURT: The objection is sustained (A304-05; H607-80). 17 The Verdict and Sentence In May 2, 2000, a jury convicted defendant of two counts of Murder in the Second Degree (Depraved Mind Murder and Felony Murder). On June 13, 2000, the Supreme Court, Suffolk County (Copertino, J.), sentenced defendant to two concurrent indeterminate terms of twenty-five years to life imprisonment. The Direct Appeal Defendant appealed his conviction to the Appellate Division, Second Department in January 2005, which affirmed the judgment of conviction.5 Specifically, the Second Department held that there was probable cause for defendant’s arrest and that his subsequent statements were voluntarily and knowingly made. Also, the court found sufficient evidence existed to support his convictions for Depraved Indifference and Felony Murder, and that his sentence was not excessive.6 Leave to appeal was denied by this Court in August 2004.7 Defendant also filed a pro se petition for a writ of habeas corpus with the Eastern District of New York of the United States District Court which was denied in August 2006.8 In March 2008, the Second Department denied defendant’s pro se writ of Error Coram Nobis.9 5 People v Garrett, 8 AD3d 676 (2d Dept 2004). 6 People v Garrett, 8 AD3d 676 (2d Dept 2004). 7 People v Garrett, 3 NY3d 674 (2004). 8 Garrett v Smith, __FSupp2d__ 2006 WL 2265094 (EDNY 2004). 9 People v Garrett, 49 AD3d 779 (2d Dept 2008). 18 Factual Background Relating to This Appeal: Defendant’s CPL §440.10 Motion to Vacate In December 2009, defendant filed a pro se CPL §440.10 motion to vacate the judgment of conviction on grounds of newly discovered evidence. Defendant claimed that the People violated Brady v Maryland when it failed to inform him that Detective Vincent O’Leary was the defendant in an unrelated federal §1983 civil rights claim. Defendant attached a copy of a complaint filed in the United States District Court, Eastern District of New York, on May 26, 1998. The caption on the complaint read as follows: “Keith W. Schroeter v. Detective O’Leary, individually as a Police detective of the Suffolk County, New York, Police Department and the County of Suffolk” (A104). According to the allegations listed in the complaint, Keith Schroeter claimed that, on the night of his arrest, “he was repeatedly and forcefully struck in the head with a telephone book by Detective O’LEARY” and that his “right hand was thereafter uncuffed and Detective O’LEARY seized it and forced ‘signatures,’ to be affixed to a document” that was later used “in support of Detective O’LEARY’s assertion that plaintiff had committed the crime of arson” (A100). Defendant also filed a docket sheet for the federal case (98-cv-03841) as further proof of the civil claim (A118-124). 19 In defendant’s motion for post-conviction relief, defendant argued that the People violated Brady because it did not disclose information that Detective O’Leary was being sued by Keith Schroeter in federal court. Because Detective O’Leary was part of the prosecution’s team, defendant alleged the People had constructive knowledge of the civil claim during the prosecution of case. He further claimed that he would have used this information to impeach Detective O’Leary at either the pretrial hearing or at trial. Alternatively, defendant argued for post-conviction relief, alleging that the People violated Brady after January 18, 2001, when the People had actual knowledge of the claim when they were served with a subpoena regarding Schroeter’s federal claim and did not provide the information to defendant. The People opposed defendant’s motion and, based on the sequence of events, argued that there was no viable Brady claim. Keith Schroeter’s federal action was filed against “Detective O’LEARY” in June 1998. Defendant was arrested for murder a month later on July 23, 1998. Pretrial hearings occurred in November 1999 and the trial occurred in April and May 2000. Defendant was sentenced in June 2000. A review of the docket sheet from Schroeter’s federal case reveals that during the time of defendant’s prosecution, there was no adjudication of Schroeter’s civil case. 20 In January 2001, Keith Schroeter’s attorney served a subpoena upon the District Attorney’s office to unseal and provide documents relating to Keith Schroeter’s criminal prosecution. On January 30, 2001, the People provided Schroeter with the required documents. Keith Schroeter’s matter was subsequently settled on March 9, 2001 – almost a year after defendant’s sentence on this matter. The prosecution argued that the accusations alleged against Detective O’Leary by Keith Schroeter constituted, at best, complaint of collateral “bad acts” and did not provide a proper basis to impeach Detective Vincent O’Leary (A129). Further, there was no viable Brady claim during defendant’s trial because People did not have actual knowledge of the unrelated civil court accusations until January 2001. Also, because the information was “never in possession of the District Attorney’s office during the prosecution of the defendant (A127),” the prosecution had no obligation under Brady to disclose the unrelated civil complaint to defendant. On March 31, 2010, the County Court, Suffolk County (Hudson, J.) denied defendant’s post-conviction motion. The court rejected defendant’s constructive knowledge argument in which defendant argued that the People were imputed to know of Schroeter’s civil action because Detective O’Leary was part of the team 21 prosecuting defendant. Citing People v Johnson,10 People v Vasquez,11 and People v Roberson,12 the court noted that the prevailing case law contradicted defendant’s claims and that a prosecutor’s Brady obligation was triggered only in cases where the prosecution had actual knowledge of the officer’s unrelated bad acts. With respect to the actual knowledge claim, the court accepted the People’s affirmation wherein they acknowledged that they did not become actually aware of Keith Schroeter’s civil action until January 18, 2001, when the office was served with a subpoena. Lastly, the court rejected defendant’s claim that he was nevertheless entitled to post-conviction relief because the People did not advise him of Schroeter’s civil matter in January 2001. The court held that “[h]aving actual knowledge of ‘bad acts’ after trial is not a Brady violation” (A56). 10 People v Johnson, 226 AD3d 828 (3d Dept 1996) (“a police officer’s secret knowledge of his own prior illegal conduct in unrelated case will not be imputed to the prosecution for Brady purposes where the People had no knowledge of the corrupt officer’s ‘bad acts’ until after defendant’s trial”). 11 People v Vazquez, 214 AD2d 93 (1st Dept 1995) (where an officer who testified at trial was later arrested for corruption, the Court found where there was no factual basis to substantiate that the prosecution had pretrial knowledge of the corruption in another case, this information cannot be imputed to them for Brady purposes). 12 People v Roberson, 276 AD2d 446 (1st Dept 2000) (an officer’s misconduct in another case that was not actually known to the prosecution cannot be imputed to the prosecution). 22 Defendant Appeals the CPL §440.10 Decision In April 2012, defendant, represented by Steven A. Feldman, Esq., appealed the County Court’s decision. Defendant argued that the People violated defendant’s rights when they failed to disclose for impeachment purposes that “Detective Vincent O’Leary extracted the confession, and was sued, before trial, for the same exact misconduct, in a case in federal court which settled” (A20) and that there was a “reasonable possibility” that this impeachment information would have changed the result of the proceeding. The People filed our opposition in June 2012 and maintained that the trial court properly denied defendant’s post-conviction motion. First, the trial court properly assessed the claim with respect to constructive and actual knowledge and that the prosecution did not have actual knowledge until we were served with the subpoena in Schroeter’s case. Second, the evidence was not Brady material because a civil complaint filed in the federal court is a public document and not within the “possession, custody or control” of the prosecution. Third, that the prevailing case law in this state contradicted defendant’s claim that the People are imputed to have constructive knowledge of Detective Vincent O’Leary’s alleged bad acts regarding a matter unrelated to the criminal case. And lastly, even assuming arguendo that knowledge of the filing of a Keith Schroeter’s §1983 civil action could be imputed upon the People, because it was collateral. 23 The Second Department Reverses On May 15, 2013, the Second Department reversed the trial court’s decision and held that: Here, the allegedly suppressed evidence clearly fell within the ambit of the prosecutor’s Brady obligation because it constituted impeachment evidence (see, People v Fuentes, 12 NY3d at 263; see also, Giglio v United States, 405 U.S. 150). Moreover, the People’s failure to disclose the existence may have denied the defendant the opportunity to conduct an investigation leading to additional exculpatory or impeaching evidence (see, United States v Gil, 297 F3d 93, 104, citing United States v Gleason, 265 FSupp 880, 886), for instance providing a basis for the disclosure of police personnel records otherwise unavailable (see, People v Gissendanner, 48 NY2d 543, 549; People v Puglisi, 44 NY2d 748, 750; People v Vasquez, 49 AD2d 590). Because the Appellate Division ruled that the accusations set forth in the civil action constituted Brady material, the People’s affirmation was insufficient to prove that they did not have actual knowledge “that no one to whom the obligation under Brady extended, other than perhaps O’Leary himself had knowledge of the civil action any time during which the prosecution’s Brady obligation was ongoing.”13 The Second Department reversed and remanded the case to the County Court because “a hearing [was] necessary to determine whether the District 13 People v Garrett, 106 AD3d at 932. 24 Attorney’s office had sufficient knowledge of the suit against O’Leary so as to trigger its obligations under Brady.” Citing Kyles v Whitley,14 the Second Department extended the imputation doctrine to apply the People in this case and held that “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in th[is] case, including the police.”15 The Prosecution Moves the Second Department to Reargue and/or Renew On June 14, 2013, the People moved the Appellate Division for Reargument and/or Renewal regarding the Second Department’s holding that, as a matter of law, the accusations advanced in an unlitigated civil summons in an unrelated case “clearly fell within the ambit of the prosecutor’s Brady obligation because it constituted impeachment evidence.” In our motion, we argued that to hold as a matter of law the accusations made against a testifying police officer filed within a civil complaint constitutes per se Brady material is a misapprehension of the law because a civil complaint is nothing more than an unsubstantiated allegation that does not establish that any of the underlying facts are correct. Moreover, such a holding would be more troubling in this case where, at a subsequent evidentiary hearing, the People could prove that the civil claim which 14 Kyles v Whitley, 514 U.S. 419 (1995). 15 People v Garrett, 106 AD3d at 932. 25 Keith Schroeter filed against a “Detective O’Leary” was not, in fact, Detective Vincent O’Leary of the Homicide Squad but rather Detective James O’Leary from the Arson Squad of the Suffolk County Police Department. Because of the way the federal case was captioned, the difference in the involved detectives did not become evident until after the Appellate Division’s decision and the documents relating to Keith Schroeter’s criminal case were further examined (A145). The defense opposed the prosecutor’s motion on procedural grounds and also maintained that the Second Department’s ruling was correct in its determination that the civil complaint constituted Brady material. Notably, on the same date we filed the Motion to Reargue and/or Amend, we submitted a letter to the Court of Appeals for leave to appeal the court’s decision with respect to the holding that, as a matter of law, an undetermined civil summons triggers the prosecution’s Brady obligation. During the pendency of the motion, the Honorable Victoria A. Graffeo granted leave to appeal to this Court on August 19, 2013. 26 POINT ONE THE APPELLATE DIVISION ERRED AS A MATTER OF LAW WHEN IT DETERMINED THAT THE MERE FILING OF A CIVIL COMPLAINT, WHICH IS PURELY HEARSAY, TRIGGERED THE PEOPLE’S OBLIGATION UNDER BRADY V MARYLAND. When the Appellate Division held that the unsubstantiated accusations contained in Keith Schroeter’s federal civil rights complaint “clearly fell within the ambit of the prosecutor’s Brady obligation because it constituted impeachment evidence,”16 it erred as a matter of law. The court ignored the fact though the civil complaint was a public document filed in federal court, it was not within the prosecution’s possession, control or custody. The court’s contradictory decision redefines Brady to now include the existence of civil complaints against police witnesses, even though the complaint itself is a hearsay document with no assurance of reliability and does not constitute proper impeachment material. Such accusations, made outside of the criminal justice system, do not meet the materiality standard in the constitutional sense as defined under Brady. 16 People v Garrett, 106 AD3d at 931-32. 27 The Appellate Division compounded its error when, despite having already found a Brady violation, it remitted the matter for a hearing to determine what the People knew. The court thus expanded a prosecutor’s Brady obligation beyond all precedential limitations by charging the People with constructive knowledge of a civil suit or removed a defendant’s burden to make any showing that the People should have known about the lawsuit before requiring a hearing. As a result of Garrett, the People are now imputed to know, or at least investigate, whether any member of their prosecution team has ever been sued or accused of misconduct on any previous case because it may constitute Brady. Now, a prosecutor has an affirmative obligation to obtain and provide for the defense any allegation of misconduct, founded or otherwise, made against any member of the prosecution team by any person on any civil case. Such a framework expands a prosecutor’s Brady obligation beyond any controlling precedent. Accordingly, we urge the Court to reverse. 1. General Principles In Brady v Maryland, the United States Supreme Court held that the Due Process Clauses of the Federal and State Constitutions guarantee a criminal defendant the right to discover favorable evidence in the People’s possession 28 material to guilt or punishment.17 Thus, a prosecutor must disclose to the defendant any and all evidence he or she (a) possesses, which is (b) favorable to the defendant, and which is (c) material to proving defendant’s innocence or material to punishment. Impeachment evidence also falls within the ambit of a prosecutor’s Brady obligation.18 Because the purpose of the rule is to insure that the accused receives a fair trial and not to punish misconduct, the rule applies regardless of the good or bad faith of the prosecutor.19 In New York, in cases where a defendant makes a specific request for a document, the evidence is material if “there exists a ‘reasonable possibility’ that it would have changed the outcome of the proceedings.”20 But where a defendant makes a general demand, evidence will be deemed material if “there is a reasonable probability that had it been disclosed to the defense, the result would have different – i.e., a probability sufficient to undermine the court’s confidence in the outcome of the trial.”21 2. The Appellate Division erred, as a matter of law, when it assumed that Schroeter’s civil complaint filed in federal court was within the possession or control of the prosecution 17 See, Brady v Maryland, 373 U.S. 83, 87-88 (1963); People v Bryce, 88 NY2d 124, 128 (1996). 18 See, Giglio v United States, 405 U.S. 150, 154-55 (1972); People v Fuentes, 12 NY3d 259 (2009); People v Hayes, 17 NY3d 46 (2011). 19 Brady v Maryland, 373 U.S. at 87. 20 People v Fuentes, 12 NY3d 259, 263 (2009). 21 People v Bryce, 88 NY2d 124, 128 (1996), citing People v Vilardi, 76 NY2d 67, 77 (1990). 29 Under Brady, the People are only obligated to disclose exculpatory information within their possession, custody or control.22 Accordingly, a Brady claim will fail when the disputed evidence is not within the control of the prosecution.23 Also, “Brady does not…require prosecutors to supply a defendant with evidence when defendant knew, or should reasonable have known of the evidence and its exculpatory nature.”24 The Appellate Division erred as a matter of law when it held that Schroeter’s civil complaint was Brady material that was in the People’s possession. Ordinarily, the People are not required to try to locate potentially exculpatory information in the files of another sovereign, such as the federal government.25 The only instance where the People have such an obligation is where the People and the other sovereign have been engaged in a joint investigation or prosecution of the case.26 22 People v Santorelli, 95 NY2d 412, 421 (2000); see, People v Wright, 86 NY2d 591 (1995) (People are chargeable with knowledge of exculpatory information in possession of local police, notwithstanding prosecutor’s own lack of knowledge). Indeed the Second Department’s prior rulings consistently maintained this requirement. 23 See, People v Hayes, 17 NY3d at 54, dissent by Chief Judge Lipmann (agreeing with majority that there was no due process violation because the disputed evidence was not in the possession or control of the prosecution when suppressed); People v Reedy, 70 NY2d 826 (1987) (People had no obligation to provide defendant with personal account written by rape victim not possessed by prosecution). 24 People v Doshi, 93 NY2d 499, 506 (1999), citing United States v Le Roy, 687 F2d 610, 618 (2d Cir 1982). 25 People v Santorelli, 95 NY2d 412 (2000) (Brady material not in actual possession of People where they were “in the hands of the FBI, an independent Federal law enforcement agency not subject to state control”). 26 Id. at 421. 30 Schroeter’s civil complaint filed with the United States District Court, Eastern District of New York, cannot reasonably be deemed to be within the People’s possession, custody or control. This was a civil matter where Keith Schroeter sued the Suffolk County Police Department and a Detective O’Leary for alleged civil rights violations. As evidenced by the federal docket sheet, the People were never made aware of the civil suit because they were not a named party in the civil suit (A118).27 3. Knowledge of a civil lawsuit is not material evidence under Brady The Appellate Division also erred, as a matter of law, when it held that knowledge of Schroeter’s lawsuit constituted impeachment material that could be used against Detective Vincent O’Leary. A civil complaint is purely hearsay and not the proper basis for impeachment. It is nothing more than a list of unsubstantiated accusations and there is no requirement for the proponent of the complaint to establish that the underlying facts are correct. Quite unlike either an indictment or an arrest, the proponent of the civil complaint does not have to meet even a minimal burden of proof with respect to his allegations. To file a §1983 claim, a plaintiff merely needs to allege 27 Federal Rules of Civil Procedure, Rule 4. 31 that, acting under color of state or federal law, the defendant deprived him of his federal constitutional rights.28 In New York, the courts generally prohibit the use of such inherently unreliable documents for impeachment purposes. Thus, a witness may not be cross-examined with the underlying acts that constitute a pending arrest or indictment.29 Accordingly, the courts have “repeatedly held that the facts of an arrest or an indictment filed incident to arrest is ‘not a permitted area for impeachment.’”30 It is well settled in this state…that a witness may not be impeached or discredited by showing on his cross- examination or in any other way that he has been indicted. An indictment is a mere accusation and raises no presumption of guilt. It is pure hearsay, for it is the conclusion or opinion of a body of men based on ex parte evidence. The rule applies to criminal actions as well as civil, and to all witnesses whether parties or not. Similar reasoning applies to the introduction of evidence concerning an arrest.31 A civil complaint is nothing more than a list of unsubstantiated accusations made to commence a lawsuit, with no assurance that any of the underlying facts alleged by the complainant are founded. Unlike an arrest or indictment, which reflect the 28 42 U.S.C. §1983. 29 People v Miller, 91 NY2d 372 (1998). 30 Id. at 380, citing People v Rodriguez, 38 NY2d 95 (1975); People v Morrison, 194 N.Y. 175 (1909); People v Cascone, 185 N.Y. 116 (1906). 31 People v Cascone at 117 (emphasis added). 32 existence of reasonable or probable cause, the proponent of the civil complaint has no burden of proof regarding the allegations. It is purely hearsay and of no evidentiary value. The court’s decision is also unprecedented and unmoored in any controlling precedent. It is in direct opposition to the Second Department’s own prior ruling in Kourtalis v City of New York, where the court explicitly held that a civilian complaint constitutes nothing but “unsubstantiated hearsay.”32 It contradicts several other Appellate Division cases where the courts have prohibited the cross- examination of police witnesses with unrelated lawsuits.33 The People’s non-disclosure cannot be deemed a Brady failure where, as here, the fact that a civil complaint has been filed in an unrelated case does not constitute evidence of a material nature. Because of the generally unreliable nature of this type of hearsay evidence, the Appellate Division’s determination, in this case, that “the People’s failure to disclose the existence of the civil action may have denied the defendant the opportunity to conduct an investigation leading to 32 Kourtalis v City of New York, 191 AD2d 480 (2d Dept 1993) (reversible error to permit plaintiff to introduce substance of five civil complaints because it was “improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion”). 33 People v Andrew, 54 AD3d 618 (1st Dept 2008) (improper to question arresting detective regarding certain federal lawsuits because “the mere existence of federal litigation was not a proper subject for cross-examination”); People v Ducret, 95 AD3d 636 (1st Dept 2012) (“unproven allegations against [a police] officer were collateral” where defendant sought adjournment to learn of underlying facts of unrelated lawsuit against police witness). 33 additional exculpatory or impeaching evidence, for instance providing a basis for the disclosure of police personnel record otherwise available” further exacerbated the error.34 Again, the allegations contained in Schroeter’s civil complaint against Detective O’Leary were no more than a “bare allegation.” In order for the defendant to access a police officer’s personnel file to impeach his credibility, he must show that there is a good-faith basis and a reasonable basis in fact for such allegations.35 The accusations contained in Schroeter’s §1983 complaint were nothing but unsubstantiated hearsay and, therefore, insufficient to provide the factual predicate to support a good faith basis for examination into the police files of Vincent O’Leary. When this Court has addressed actual allegations of police misconduct, moreover, it has held that, in order to use the information for impeachment purposes, the defendant needed to establish, at minimum, a good faith basis. A civil complaint, which is purely unsubstantiated hearsay, does not provide a sufficient basis. The boundary beyond which a duty to obtain, much less disclose, information to the defendant is well illustrated in People v Gissendanner.36 Just as the People had no direct access to confidential police files in Gissendanner, the 34 People v Garrett, 106 AD3d at 932. 35 People v DePasquale, 54 NY2d 693 (1981). 36 People v Gissendanner, 48 NY2d 543 (1979). 34 People in this case had no direct access to the civil lawsuit filed against one Detective O’Leary – which was handled, of course, by the Suffolk County Attorney’s Office. In Gissendanner,37 the Court held that before a defendant is even entitled to have a judge sign an order authorizing a subpoena of a police officer’s confidential file, he must set forth in good faith a factual predicate because “entitlement to access on no more than a bare allegation that the inspection is sought as fodder for an untracked attack on credibility would render the principle of confidentiality meaningless for all practical purposes.” This rule is also supported by §50-a of the Civil Rights Law which permits a breach of the confidentially of police files only after the defendant has made a “clear showing of facts” warranting disclosure.38 There is a recognized balance between a defendant’s right to access material information and a limitation against an unchecked rummaging for potentially useful information.39 37 People v Gissendanner at 549. 38 Civil Rights Law §50-a[2]. 39 People v Koslowski, 11 NY3d 223 (2008). 35 The impeachment evidence was not “material” under Brady. In New York, where a defendant does not make a specific request for a document, materiality can only be demonstrated by a showing that there is a “reasonable probability” that a defendant’s possession of disputed evidence would have changed the outcome of the proceedings.40 A factor evaluated when assessing the materiality of disputed evidence is whether the evidence would be admissible at trial.41 When the court has deemed the alleged Brady evidence inadmissible, it has held that the materiality standard was not met.42 In People v Ennis,43 three codefendants were charged with several counts of drug conspiracy and assault. Two of the defendants (Sheldon and Aaron Ennis) were brothers and, before trial, Aaron Ennis participated in a proffer session with the District Attorney’s office. During the meeting, Aaron Ennis stated that he shot the victim and that his brother, Sheldon Ennis, was not present at the shooting. The prosecution never alerted Sheldon Ennis of the exculpatory statement but Sheldon’s attorney, David Cooper, learned of the statement in confidence after a promise that he would not disclose the information until after trial. Cooper chose 40 People v Fuentes, 12 NY3d at 263. 41 People v Ennis, 11 NY3d 403 (2008); People v Hunter, 11 NY3d 1 (2008); People v Scott, 88 NY2d 888 (1996). 42 People v Ennis, 11 NY3d at 414-15; People v Scott, 88 NY2d at 891. 43 People v Ennis, 11 NY3d 403 (2008). 36 not to use the evidence during the trial but moved, without success, for post- conviction relief based on the prosecutor’s failure to disclose the document.44 The case appeared before this Court and one of the issues was whether Cooper was ineffective when he failed to sever the case and failed to preserve or use the Brady material at trial. In Ennis, defendant had specifically requested statements from the codefendants so the “reasonable possibility” standard applied.45 The Court held Cooper could not be deemed ineffective by failing to use the exculpatory statement because there was “little or no chance of success” of it being entered into evidence. “[B]ecause there is no way that defendant could have presented the statement to jury, this is a situation where the inadmissibility of the exculpatory information prevented it from being material.”46 Another case where the Court factored the admissibility of disputed evidence when determining materiality was People v Hunter.47 In Hunter, a defendant was charged for the rape, sodomy and sexual abuse of a 17-year-old 44 Id. at 408. 45 Id. at 414. 46 Id. at 414-15, citing People v Scott, 88 NY2d 888 (1996) (“reasonable possibility” standard of materiality because disputed evidence was a polygraph test result which is not admissible evidence). 47 People v Hunter, 11 NY3d 1 (2008). 37 complainant who alleged that the defendant penetrated her with his penis, his finger and performed oral sex on her after she accepted his invitation to watch a movie at his house. Defendant admitted to the oral sex but claimed that it was consensual but denied any further sexual activity because after the oral sex, the victim stopped him and inexplicably ran out of the house. There was no conclusive forensic evidence and two witnesses – one of them being complainant’s father – testified that the complainant was known in the community as a liar. Her father also testified that once, during a violent rage, she had previously threatened to call the police and tell them that he had raped her.48 Ultimately, defendant was acquitted of the rape and sexual abuse but convicted of the sodomy charge. After trial, defendant learned that another man (“Parker”) was charged for the rape of the same complainant for a crime occurring ten months after defendant’s crime. Similarly, Parker admitted to having sex with complainant but with her consent. Defendant filed a CPL §440.10 motion to vacate his conviction on Brady grounds. The trial prosecutor stipulated that he learned of Parker’s charges shortly before trial but did not tell the defense. The trial court reversed the conviction but the Appellate Division, Third Department later reinstated the conviction.49 48 People v Hunter, 11 NY3d at 3-4. 49 Id. at 4-5. 38 When the Appellate Division reversed, it relied heavily on this Court’s holding in People v Mandel,50 where this Court held that a trial court properly precluded the impeachment of a rape victim with her own previous, allegedly false, rape complaints. When the Appellate Division reversed Hunter, it held that the disputed evidence was inadmissible under Mandel and, therefore, not material under Brady. The court reversed because Mandel had not held that the evidence was inadmissible as a matter of law, thus, the Appellate Division erred when it deemed it immaterial for Brady purposes, on this basis. And because the evidence was potentially admissible, the court addressed the materiality issue – that is, whether there would have been a reasonable probability that he would have been acquitted if defendant possessed the disputed evidence.51 In Hunter, the Court did not reach the issue of whether inadmissible evidence can be deemed material under Brady.52 But it is the People’s position that where the disputed material has no evidentiary value and is purely hearsay and, therefore, inadmissible, as a matter of law, it cannot establish materiality under either the “reasonable probability” or “reasonable possibility” standard. 50 People v Mandel, 48 NY2d 952 (1979). 51 People v Hunter, 11 NY3d at 6. 52 Id. at 5 (“Defendant argues that the information would be subject to Brady even if it was not admissible in evidence”). 39 4. Even if “material,” there was “no reasonable probability” that defendant would have been acquitted In this case, defendant made only a general request for Brady evidence (A115) thus the “reasonable probability” standard applies.53 Here, there was no “reasonable probability” that disclosing that fact of a pending lawsuit in an unrelated matter would have changed the outcome of the proceedings. Even if defendant possessed knowledge of Schroeter’s complaint, it would not have furthered the defense. Schroeter’s civil complaint, moreover, was based on his allegations regarding Detective James O’Leary of the Arson Squad and not Detective Vincent O’Leary of the Homicide Squad. Putting aside for the moment that the civil complaint actually alleged misconduct by a different detective, the Appellate Division’s holding that there was a “reasonable probability” that it would have changed the outcome of the proceedings was wrong for two reasons. First, the court’s determination that “the primary evidence at trial establishing the defendant’s identity as the murdered was his confession” and that the only “other evidence tying him to the crime was weak, consisting of testimony that he was seen with the victim shortly before she disappeared”54 was not accurate. As provided in the Statement of Facts, the 53 The Appellate Division likewise determined that “no specific request” was made for the allegedly suppressed information and applied the “reasonable probability” test in its decision. People v Garrett, 106 AD3d at 931. 54 People v Garrett, 106 AD3d at 931. 40 circumstantial case against defendant was a strong one. LC, who was last seen alive with defendant, was found behind defendant’s mother’s house and bound with materials from the room in which defendant stayed. Also, immediately after LC’s disappearance, defendant fled the area and was found several weeks later hiding out in an empty residence – with his belongings and sleeping materials in an inside hallway so that he could not be seen from any outside windows. Second, the Appellate Division wrongly concluded that there was “reasonable probability” that a successful impeachment of Detective O’Leary’s credibility would have changed the outcome of this case. This was not a case where Detective O’Leary was the only detective involved in the procurement of defendant’s confession. Several other detectives interviewed defendant throughout the course of the night (A418; H268). Detective Eugene Walsh was present with Detective O’Leary throughout the questioning (A342; H35) (A383; H76) (A404; H97). And several other officers participated in the questioning, including Pasquale Albergo (A406; H99), Detective Anderson (A459; H232), and Detective Sergeant Fandry (A436; H271). Assuming arguendo there was a civil complaint filed against the Detective O’Leary from this case, alleging misconduct in another case, at most, the information may have functioned as impeachment evidence of limited value because Detective O’Leary’s testimony regarding defendant’s confession was duplicated by other officers who could have testified at trial. 41 Also, assuming arguendo that the substance of Schroeter’s civil complaint formed the basis to cross-examine Detective O’Leary and assuming arguendo that they related to Detective Vincent O’Leary and not Detective James O’Leary, the civil complaint allegations were not material. This is not a “close question” as presented in People v Hunter.55 As discussed above, Schroeter’s unsubstantiated accusations had no evidentiary value. There is a fundamental and qualitative difference between an accusation by a critical witness, the very existence of which raises credibility issues (Hunter), and a mere accusation against a prosecution witness, the mere existence of which has no value in our case. 5. The Appellate Division erroneously ruled that the People have an affirmative duty to learn of any civil complaint or allegation of misconduct filed against a testifying police officer A fundamental flaw in the Appellate Division’s decision is its apparent and erroneous broadening of the imputation doctrine set forth in Kyles v Whitley. The decision is unprecedented and contradicted by both federal and state law. Essentially, it creates upon the People a new affirmative duty to learn and disclose of any allegation of misconduct about a police officer regarding any a case – civil 55 People v Hunter, 11 NY3d at 6. 42 or criminal, substantiated or unfounded.56 Indeed, the Appellate Division appears to have adopted defendant’s overbroad position that: “[t]he prosecutor had a duty to ask the Detective if he had any Brady material, if he had ever beat any confessions out of other defendants, or even if he was being sued, in any court, for any reason related to his course of conduct as a Suffolk County Detective…The prosecutor should have also conducted a cursory check in state and federal court to see if the Detective had any civil cases against him” (A28-29). Should the Court affirm the Appellate Division’s ruling, no conviction will remain unassailable. Under Kyles, a prosecutor has “a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case.”57 The protection of Brady extends to “discoverable evidence gathered by the prosecution…and seeks to ensure the disclosure, or prevent the destruction of exculpatory evidence already within the People’s possession.”58 Under Kyles, 56 As acknowledged by defendant in his brief to the Appellate Division, “there was nothing secret about O’Leary’s very public federal lawsuit” (A30) and a “cursory check to see if the Detective had any civil rights cases” would have revealed the complaint “in seconds” (A29). The defense knew that Detective Vincent O’Leary was a key prosecution witness because of his testimony at the pretrial hearing. If there was a civil complaint filed against Detective O’Leary, the defense could have just as easily confirmed the existence of any civil complaint filed against him by running a query in the civil courts. 57 People v Santorelli, 95 NY2d 412, 421 (2000), citing Kyles v Whitley, 514 U.S. 419, 437 (1994). 58 People v Hayes, 17 NY3d (2011), citing People v Kelly, 62 NY2d 516, 520 (1984). 43 knowledge is charged to the People even in cases where the trial prosecutor was unaware that the police possessed such evidence.59 The normal application of this rule can be seen in those cases that hold that a prosecutor has constructive knowledge of information that police have gathered during the investigation of the crime that defendant is accusing of having committed.60 The rule is different, however, where the defendant’s claim pertains to a police officer’s alleged misconduct that occurs outside of the investigation or prosecution. As held in People v Vazquez61 and consistently applied by other courts,62 “a police officer’s secret knowledge of his own prior illegal conduct in an unrelated cases will not be imputed to the prosecution for Brady purposes where the People had no knowledge of the corrupt officer’s ‘bad acts’ until after the trial.”63 “Brady’s affirmative obligations do not, carte blanche, extend to require 59 Id., citing People v Wright, 86 NY2d 591, 598 (1995); People v Novoa, 70 NY2d 490, 498 (1987). 60 People v Wright, 86 NY2d at 591; People v Vilardi, 76 NY2d at 67. 61 People v Vasquez, 214 AD2d 93 (1995)(1st Dept 1995). 62 People v Kinney, 103 AD3d 563 (1st Dept 2013) (no Brady violation where People unaware of police chemists misconduct in unrelated cases); People v Longtin, 245 AD2d 807 (3d Dept 1997) (a police officer’s secret knowledge of his own prior illegal conduct in unrelated cases will not be imputed to the prosecution for Brady purposes where the People had no prior knowledge); People v Johnson, 226 AD2d 828 (3d Dept 1996) (police officer’s secret knowledge of his own illegal conduct in unrelated cases will not be imputed to the prosecution where People had no knowledge of “bad acts” until after trial”). 63 People v Vasquez, 214 AD2d at 100-101. 44 prosecutorial inquiry of other law enforcement agencies into any and all information about a police officer which ‘may or may not be exculpatory.’”64 There must be boundaries and the imputation doctrine must be limited to evidence generated or collected within the subject criminal prosecution. The duty of the prosecutor to investigate must necessarily diminish as information possessed by other law enforcement offices or, in this case, the courts of another jurisdiction, become more and more removed from the case on trial and when it becomes more speculative to believe that any relevant information even exists. The framework suggested by the Appellate Division’s holding is untenable because the ramifications of its holding are limitless. Garrett presents this Court with a fundamentally flawed expansion of the prosecution’s Brady obligations. At the very least, it imposes on the People the obligation to disclose an immaterial fact on the basis that it could, potentially, lead to material information. Garrett can also be read to impose on the prosecution an expanded duty to obtain information that lies beyond the previously defined limits 64 People v Martin, 240 AD2d 5, 12 (1st Dept 1998) (where Appellate Division found prosecutor’s affirmation to be sufficient holding “The prosecutor’s affirmation, which remains uncontroverted in any substantive manner, attests that the District Attorney’s office had not been apprised of the departmental investigation until such time as the matter appeared before the Grand Jury. Hence, the District Attorney did not possess the information which defendant contends should have been disclosed prior to his plea.” 45 of prosecutorial possession and control. For both reasons the court’s unsound decision should be reversed. 46 CONCLUSION The Appellate Division’s decision represents an unwarranted expansion of Brady, as evidenced by the court’s failure to ground its analysis in either this Court’s or the Supreme Court’s precedents. It affirmatively obligates prosecutors to make an unwarranted expenditure of limited prosecutorial resources to fish for information that could or could not possibly lead to material information. There was no Brady violation in this case and the lower court’s ruling was erroneous as a matter of law. The People were not aware that a Detective O’Leary was being sued civilly and even if we did, the mere filing of a lawsuit in an unrelated case does not constitute material evidence. Accordingly, we urge the Court to reverse the Appellate Division’s Order and affirm the trial court’s denial of defendant’s motion to vacate his conviction. RELIEF REQUESTED B A S E D U P O N T H E F O R E G O I N G , W E RESPECTFULLY URGE THIS COURT TO REVERSE THE ORDER OF THE APPELLATE DIVISION AND AFFIRM THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO VACATE HIS CONVICTION. DATED: December 4, 2013 Riverhead, New York Respectfully submitted, THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Appellant ANNE E. OH Assistant District Attorney Of Counsel Criminal Courts Building 200 Center Drive Riverhead, New York 11901 (631)852-2500 47 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, -x Appellant, - against - Court of Appeals Case No. APL-2013-00232 App. Div. Case No. 2010-04483 MARK GARRETT, Defendant-Respondent. Suffolk Co. Indictment No. 1781-98 ATTORNEY'S CERTIFICATION I, ANNE E. OH, ESQ., an attorney admitted to practice in the State of New York, hereby certifies that the digital filing of Appellant's Brief required by sections 500.2, 500.12[h] and 500.14[g] of the rules are in PDF format and are identical to the filed original printed material. DATED: December 4,2013 Riverhead, New York -^(NNE E. OH Assistant District Attorney Of Counsel to THOMAS J. SPOTA District Attorney of Suffolk County Attorney for Appellant 48 AFFIDAVIT OF SERVICE STATE OF NEW YORK) )SS: COUNTY OF SUFFOLK) KRYSTINA MOORE, being duly sworn, deposes and says: That on the 5th day of December, 2013, I served three (3) copies of the within Brief of Appellant upon the defendant, MARK GARRETT, by Express Mail, through their attorney, Steven A. Feldman, ESQ., by depositing a true copy of same enclosed in a postpaid wrapper in the official depository maintained and controlled by the United States Postal Service, at Criminal Courts Building, 200 Center Drive, Riverhead, New York 11901, directed to said defendant's attorney at Feldman & Feldman, 626 EAB Plaza, West Tower - 6th Floor, Uniondale, New York 11556 , the address designated by the attorney or the place where they then kept an office. Deponent is over the age of eighteen (18) years. Sworn to before me this 5th day of December, 2013. GVf)h piary BublfcThomas c costello Notary Public, State of New York Registration #02CO5036155 Qualified In Suffolk County Commission Expires November 21, 2014