Peoplev.Vilardi

Court of Appeals of the State of New YorkMay 10, 1990
76 N.Y.2d 67 (N.Y. 1990)

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Summaries

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    Summary of this case from People v. LaValle

Argued March 29, 1990

Decided May 10, 1990

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Thaddeus E. Owens, J.

Charles J. Hynes, District Attorney (Seth M. Lieberman and Jay M. Cohen of counsel), for appellant. Alan Scribner and Larry Bronson for respondent.


This appeal calls upon us to determine the effect to be given to the People's failure, in an arson prosecution, to disclose a report prepared by its explosives expert that had been specifically sought by defendant in his discovery request. More particularly, we must decide whether the standard of United States v Bagley ( 473 U.S. 667) should be adopted as a matter of State law.

Defendant was convicted of arson in the first degree, attempted arson in the first degree and conspiracy, for having conspired with Ronnie and William Bernacet, Ephraim Flores and Gino Romano to plant and set off one pipe bomb below a pizzeria on Nostrand Avenue in Brooklyn, and a second below a nearby laundromat. The first bomb did not explode. It was the People's theory, however, that the bomb planted in the laundromat basement had exploded as planned, and thus the defendants were charged with arson in the first degree, as well as attempt. Damage caused by an explosion is an element of arson in the first degree (Penal Law § 150.20).

The Bernacet brothers — who unlike defendant had made fairly extensive inculpatory statements — were tried first, on the same charges on which defendant was later tried. Among the prosecution witnesses was Officer Daniel Kiely, a member of the Bomb Squad, who had inspected the laundromat basement the day after the alleged explosion. At the Bernacets' trial, Kiely was cross-examined at length about a report he wrote the day after the incident, in which he stated that a thorough inspection of the basement revealed no evidence that there had been an explosion, but asked that the case be kept open. Although Kiely testified that he ultimately concluded (in light of reinspection of the premises a year later) that there had been an explosion, defense counsel in summation argued that there was insufficient proof of the explosion element of first degree arson, based on Kiely's first report. The Bernacet brothers were acquitted of the completed arson (see, People v Bernacet, 108 A.D.2d 921, lv denied 65 N.Y.2d 813; People v Bernacet, 112 A.D.2d 942, lv denied 66 N.Y.2d 1037).

Before defendant's trial, counsel made a pretrial request for all reports "by ballistics, firearm and explosive experts" concerning the laundromat explosion. The prosecutor — not the same Assistant District Attorney who tried the Bernacets — sent him 12 reports, not including Officer Kiely's first report. At trial, no questions about that first report were asked during the brief cross-examination of Kiely, and no effort was made to argue that the People had failed to establish the explosion element of the top count. The sole defense was that the police informant who provided much of the evidence against defendant was too unsavory to be credited. Police officers and the informant Francisco Martinez — who was hired by the defendant and the Bernacets to help carry out the bombings — testified that Martinez was reporting to the police from the outset, and a taped conversation between defendant and Martinez concerning the bombings was introduced into evidence. Defendant was convicted on all counts.

While preparing defendant's appeal, appellate counsel reviewed the transcript of the Bernacets' trial, and realized that there was an undisclosed explosives report. Defendant made a motion to vacate the judgment of conviction, pursuant to CPL 440.10, arguing both that the undisclosed report was Brady material (and failure to disclose violated his due process rights under the State and Federal Constitutions) and that his trial counsel had been ineffective. The People responded that non-disclosure did not require reversal, as there was overwhelming evidence of defendant's guilt, including Officer Kiely's ultimate conclusion that the laundromat bomb had indeed caused an explosion and testimony by residents of the building that there had been a "bang" and that the building had shaken. The District Attorney also noted that there was an issue as to whether the substance of the report, even if exculpatory, had been withheld.

The trial court summarily denied defendant's motion, holding that the Brady claim should have been raised on direct appeal and that defendant had received the effective assistance of counsel. The Appellate Division modified. Although it too found no merit in the ineffective assistance claim, the court rejected the District Attorney's remaining contentions, as do we.

The Appellate Division concluded that defendant's Brady claim was properly raised pursuant to CPL 440.10, and granted defendant's motion to the extent of vacating his conviction of arson in the first degree. Distinguishing this case — in which counsel had specifically sought the undisclosed report — from a case in which no specific request had been made, the Appellate Division held that the report was exculpatory, that the prosecution violated the defendant's constitutional right to be informed of exculpatory information known to the State, and that reversal was required "if there is a reasonable possibility that [the undisclosed material] contributed to the defendant's conviction." ( 150 A.D.2d 819, 820.) Concluding that the People had not met that standard, the Appellate Division ordered a new trial on the completed arson charge to which the exculpatory material was relevant. We now affirm.

Analysis

On appeal, the People contend that the standard applied by the Appellate Division was erroneous. Noting that the Supreme Court has recently articulated a single standard for determination of when a prosecutor's failure to disclose evidence favorable to the defendant requires reversal (see, United States v Bagley, 473 U.S. 667, supra), the People argue that this court adopted that standard in People v Chin ( 67 N.Y.2d 22). Thus, the People reason, the Appellate Division should have applied the Bagley standard: that failure to disclose favorable evidence is "constitutional error * * * only if the evidence [was] material in the sense that * * * there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different" (United States v Bagley, 473 US, at 678, 682, supra [emphasis added]). The Appellate Division's assessment, according to the People, was improperly based on a "reasonable possibility" standard more favorable to defendant, as there is no longer any distinction between cases in which a specific request has been made for undisclosed Brady material and those in which it has not.

Contrary to the People's claim, this court has not yet had occasion to consider, under State law, whether to adopt Bagley's broad formulation of the materiality standard in the context of a case where the prosecutor has failed to turn over particular exculpatory evidence, despite the fact that defendant has requested disclosure of that very evidence. People v Chin was not such a case. As is made plain in the Chin opinion, the claimed Brady material was not exculpatory evidence; no demand had been made for it; and the People had no knowledge of it before trial (People v Chin, 67 N.Y.2d, at 33, supra; see also, People v Brown, 67 N.Y.2d 555, 559, cert denied 479 U.S. 1093). In this case, by contrast, the withheld report is plainly exculpatory, as it suggests there was no evidence of a crucial element of the first degree arson charge; there is no dispute that the report was in the People's possession; and defendant specifically sought discovery of the very material involved here — reports of explosives experts.

Thus, unlike Chin, this case does require us to decide whether Bagley should be adopted as a matter of State law.

All members of this court agree that Bagley holds that a rule of "reasonable probability" is now to be applicable to all failures to disclose. We agree that this court has previously recognized the rule of reasonable probability to be the holding of Bagley (People v Chin, 67 N.Y.2d 22). And we all agree that this court has not yet chosen to adopt or reject the Bagley rule in the context of specific request cases.

I.

Federal constitutional law concerning the People's failure to disclose exculpatory evidence originated in a series of cases involving the prosecution's knowing use of perjured testimony (see, United States v Bagley, 473 US, at 679, n 8, supra [discussing cases]).

In Brady v Maryland ( 373 U.S. 83), decided nearly 30 years ago, the Supreme Court established, as a matter of Federal constitutional law, that the prosecution's failure to disclose to the defense evidence in its possession both favorable and material to the defense entitles the defendant to a new trial. Brady itself involved failure to disclose evidence that had been specifically requested by the defense, and the court noted that the nondisclosure was constitutional error if the evidence would "tend to exculpate" the defendant ( 373 US, at 88, supra).

Following the Brady decision, there was considerable doubt as to whether a specific request for the exculpatory evidence might not be an indispensable element of a Brady claim (see, Comment, Brady v Maryland and the Prosecutor's Duty to Disclose, 40 U Chi L Rev 112, 115-117 [1972]). It was in response to this doubt that in United States v Agurs ( 427 U.S. 97), the court created a two-tiered framework for determining whether favorable evidence was "material," so that the failure to disclose it required a new trial. Evidence specifically requested by the defense was material if it "might have affected the outcome of the trial." (Id., at 104.) By contrast, in cases where there had been no request, or only a general request for exculpatory material, the prosecution's duty to disclose arose entirely from the notice provided by the very nature of the evidence, and the standard for a new trial was higher: undisclosed exculpatory evidence was material only if it "create[d] a reasonable doubt that did not otherwise exist." ( 427 US, at 112.)

While the Supreme Court's use of this phrase in Agurs was apparently not intended as a precise statement of the materiality standard in such cases, courts in specific request cases have generally looked to that language in assessing materiality (see, 2 LaFave Israel, Criminal Procedure § 19.5, at 539).

In Agurs, the court reasoned that it was appropriate to impose a lesser burden on the defendant in a "specific request" case because such a request puts the prosecutor on notice that there is particular evidence the defense does not have and believes to be important. By contrast, use of the "might have affected" standard where the prosecutor had been given no such notice might require something close to open file discovery (United States v Agurs, 427 US, at 106-109, supra). As the court noted, "[w]hen the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable" (id., at 106), and this has been read as "reflect[ing] the view that [in the specific request cases], the prosecutor's responsibility for any resulting trial deception is clear." (2 LaFave Israel, Criminal Law § 19.5, at 538.) This court has likewise found the prosecution's failure to turn over specifically requested evidence to be "seldom, if ever, excusable" and to verge on prosecutorial misconduct (see, People v Brown, 67 N.Y.2d 555, 559, supra; People v Cwikla, 46 N.Y.2d 434, 441-442).

In Bagley, a deeply divided Supreme Court reconsidered its two-tiered approach, and replaced it with a single standard applicable in all cases. Adopting the very same test it had just formulated in Strickland v Washington ( 466 U.S. 668) for determining ineffective assistance of counsel claims, the court in Bagley held that undisclosed evidence is material only if there is a "reasonable probability" that it "would" have altered the outcome of the trial; a reasonable probability is "a probability sufficient to undermine confidence in the outcome." ( 473 US, at 682.) The court opined that this standard was "sufficiently flexible" to cover both the "specific request" and "no request/general request" cases. Justice Blackmun observed that a prosecutor's failure to respond to a specific request not only deprives the defense of the exculpatory evidence (as in all Brady cases) but also may have the effect of misleading the defense to conclude that the particular evidence does not exist, and therefore to abandon its investigative and trial efforts in that direction. But he concluded that under the Strickland formulation, any such additional adverse consequences could be taken into consideration by a reviewing court in the totality of the circumstances, and no separate standard was necessary (id., at 682-683).

This court has not adopted the Strickland test for determining ineffective assistance of counsel claims (see, e.g., People v Rivera, 71 N.Y.2d 705; People v Benn, 68 N.Y.2d 941).

While writing for the court, Justice Blackmun was joined in this observation only by Justice O'Connor. Justices White, Burger and Rehnquist saw no need to elaborate on relevance of the specificity of the defense's request for disclosure. Justices Marshall (joined by Justice Brennan) and Stevens dissented separately; Justice Powell did not participate in the decision. Thus, at least five Justices appear to believe that specific requests should be viewed somewhat differently. As one commentator noted, "[t]he initial lower court response to Bagley has been marked by a good deal of confusion." (Note, Specific Requests and the Prosecutorial Duty to Disclose Evidence: The Impact of United States v Bagley, 1986 Duke LJ 892, 914.)

Thus, while continuing to give at least a theoretical preference to specific request cases, the Supreme Court's new rationale and approach are entirely different from Agurs. Indeed, Justice Stevens, the author of the majority opinion in Agurs, dissented in Bagley on the ground that "[b]ecause this constitutional duty to disclose [in the absence of a request] is different from the duty described in Brady, it is not surprising that we developed a different standard of materiality in the Agurs context." ( 473 US, at 711 [Stevens, J., dissenting; emphasis in original].) Rather than giving more serious consideration to specific requests both because of the greater degree of notice they provide, and out of reasons of fairness and prosecutorial misconduct, in Bagley the court jettisoned such considerations in favor of a single standard, which in some undefined measure may — or may not — include adverse consequences in the specific request context. (See, Note, Specific Requests and the Prosecutorial Duty to Disclose Evidence: The Impact of United States v Bagley, 1986 Duke LJ 892.)

From a Federal standard of "seldom, if ever, excusable," it appears that the prosecution's failure to turn over specifically requested evidence, under Bagley, will now seldom, if ever, be unexcused.

II.

Over the course of the decades since Brady was decided, the courts of this State, obviously, have had to deal on a practical level with the consequences of a prosecutor's failure to disclose evidence requested by the defense.

As is the Federal rule of Brady, this court's analysis of the prosecutor's duty to disclose exculpatory evidence is rooted in cases dealing with the similar question of knowing prosecutorial use of false and misleading testimony (see, People v Savvides, 1 N.Y.2d 554, 556-557; People v Creasy, 236 N.Y. 205, 221). Notably, these cases even predate the identified Federal progenitors of Brady, and were decided entirely without reference to Federal law, based on our own view of this State's requirements for a fair trial.

Our own view of important State concerns in this matter has differed significantly from the Supreme Court's newest interpretation of the dictates of the Federal due process standard.

We have long emphasized that our view of due process in this area is, in large measure, predicated both upon "elemental fairness" to the defendant, and upon concern that the prosecutor's office discharge its ethical and professional obligations (see, People v Novoa, 70 N.Y.2d 490, 496-499; People v Cwikla, 46 N.Y.2d 434, 441-442, supra; People v Simmons, 36 N.Y.2d 126, 131-132; People v Savvides, 1 N.Y.2d 554, 556-557, supra; People v Creasy, 236 N.Y. 205, 221, supra). Although we have refused, in this context, to adopt a rule of automatic reversal, we have endorsed the proposition that "`the strictness of the application of the harmless error standard seems somewhat to vary, and its reciprocal, the required showing of prejudice, to vary inversely, with the degree to which the conduct of the trial has violated basic concepts of fair play.'" (People v Fein, 18 N.Y.2d 162, 174, cert denied 385 U.S. 649, reh denied 386 U.S. 978 [citing Kyle v United States, 297 F.2d 507, 514].) Indeed, in a related area, we have found our State concerns for fairness and prosecutorial misconduct to be of such paramount importance that we have imposed a rule of automatic reversal for nondisclosure (People v Ranghelle, 69 N.Y.2d 56; People v Perez, 65 N.Y.2d 154).

In accordance with our long-standing State concerns, in cases involving failure to disclose material specifically requested by a defendant, we have described the standard as one premised on Agurs, and that has been understood and cited again and again as the governing standard throughout the State (see, e.g., People v Smith, 63 N.Y.2d 41, 67; People v Porter, 128 A.D.2d 248, 253-254; People v Velez, 118 A.D.2d 116, 119-120; People v Pugh, 107 A.D.2d 521, 530; People v Kitt, 86 A.D.2d 465, 467; People v Ramos, 146 Misc.2d 168, 171-172 [predicting that this court will retain Agurs and reject Bagley, consistent with its "right sense of justice" sentiment evidenced in the Rosario cases]).

As the concurring opinion notes in detail (see, at 85), the cited cases are of course distinguishable, in the sense that the dispositive question was not application of an articulated standard to nondisclosure of specifically requested evidence. That is hardly the point, however. The cited cases manifestly demonstrate that the courts throughout this State have long understood and repeatedly stated that failure to disclose specifically requested material is subject to a different standard of review than failure to turn over evidence that was not requested. Moreover, contrary to the concurrence's view, People v Savvides ( 1 N.Y.2d 554) and People v Creasy ( 236 N.Y. 205) most certainly do support the claim that New York's body of law on exculpatory evidence and due process originated independently of Federal law on the subject, and in subsequent cases involving evidence that even the concurrence would concede to be Brady material, we have relied upon these State law cases and discussed their rationale (see, People v Cwikla, 46 N.Y.2d 434, 442; People v Simmons, 36 N.Y.2d 126, 131-132).

We decline to abandon these accepted principles in order to conform to the lesser protections of Bagley.

III.

We agree with the Appellate Division that a showing of a "reasonable possibility" that the failure to disclose the exculpatory report contributed to the verdict remains the appropriate standard to measure materiality, where the prosecutor was made aware by a specific discovery request that defendant considered the material important to the defense. As we have previously noted (People v Cwikla, 46 N.Y.2d, at 441, supra), suppression, or even negligent failure to disclose, is more serious in the face of a specific request in its potential to undermine the fairness of the trial, and ought to be given more weight than as simply one of a number of discretionary factors to be considered by a reviewing court.

Further, a backward-looking, outcome-oriented standard of review that gives dispositive weight to the strength of the People's case clearly provides diminished incentive for the prosecutor, in first responding to discovery requests, thoroughly to review files for exculpatory material, or to err on the side of disclosure where exculpatory value is debatable. Where the defense itself has provided specific notice of its interest in particular material, heightened rather than lessened prosecutorial care is appropriate.

The "reasonable possibility" standard applied by the Appellate Division — essentially a reformulation of the "seldom if ever excusable" rule — is a clear rule that properly encourages compliance with these obligations, and we therefore conclude that as a matter of State constitutional law it is preferable to Bagley (see, People v P.J. Video, 68 N.Y.2d 296). Moreover, the Strickland "reasonable probability" standard — which we have chosen not to adopt as a matter of State law despite several invitations to do so — remits the impact of the exculpatory evidence to appellate hindsight, thus significantly diminishing the vital interest this court has long recognized in a decision rendered by a jury whose ability to render that decision is unimpaired by failure to disclose important evidence (see, People v Savvides, 1 N.Y.2d, at 557, supra).

Finally, the new Bagley standard is hardly clear. The Supreme Court itself could not muster a plurality on how the new standard was to be applied to the case before it, and the case has engendered considerable confusion (see, n 4, supra).

For all of these reasons, and not because we "merely * * * disagree with [the Supreme Court] or dislike the result reached" (concurring opn, at 80), we choose to adhere to our existing standard as a matter of due process of law under the State Constitution.

IV.

Applying that standard in this case, we agree with the Appellate Division that defendant is entitled to a new trial on the first degree arson charge, as there was at least a reasonable possibility that defendant would not have been convicted on that count had the exculpatory report been available to him at trial. That a contemporaneous and avowedly "thorough" inspection of the bomb site by an expert had led him to conclude that no explosion occurred well might have caused the jury to discount his contrary assertion at trial, which was based on challenged circumstantial evidence and arrived at only after the passage of a year. It is the reasonable possibility that the undisclosed evidence might have led to a trial strategy that resulted in a different outcome (as appears to have happened in the Bernacets' case) that requires reversal.

Accordingly, the order of the Appellate Division should be affirmed.


I, too, would affirm because the evidence should have been turned over to defendant. I write separately, however, because I do not agree with the majority's standard for determining materiality based on the nature of the defendant's request. I agree with the Supreme Court that exculpatory evidence is either material to guilt or not material; it does not become more so because of the form of the defendant's request for it. Because I can find no reason to construe our State Constitution's Due Process Clause in a way different from the Due Process Clauses in the Federal Constitution, I would apply the Federal standard and hold that Brady evidence is material only if there is a reasonable probability that the prosecution's failure to deliver it affects the outcome of the trial.

I

In Brady v Maryland ( 373 U.S. 83), the Supreme Court held that the prosecution must disclose to defendant evidence in its possession that is (1) favorable to the defense and (2) material either to guilt or punishment. The failure to do so violates the constitutional guarantee of due process. The question presented by this appeal is what evidence is material. The Brady court offered no guidance on the question but the subject was subsequently discussed in United States v Agurs ( 427 U.S. 97) and resolved as a matter of Federal constitutional law in United States v Bagley ( 473 U.S. 667).

In Agurs the defense did not request Brady material. Nevertheless, the court equated no request with a general request and held that under either circumstance evidence should not be considered material unless it was so obviously supportive of a claim of innocence that elementary fairness suggests it should have been disclosed (United States v Agurs, supra, at 104). The court had no such concern that the outcome of the Agurs trial was affected by the failure to turn over Brady material and affirmed defendant's conviction. Having decided the case before it, the court went on to suggest that in cases in which the defendant has made a specific request for exculpatory material, the standard of materiality could be more favorable to defendant. As commentators have noted, the decision is not without its ambiguities (see generally, discussion of Agurs in 2 LaFave Israel, Criminal Procedure § 19.5, at 537-541).

After an extensive discussion, the closest the court came to stating a rule for specific requests was: "The test of materiality in a case like Brady in which specific information has been requested by the defense is not necessarily the same as in a case in which no such request has been made." (United States v Agurs, 427 U.S. 97, 106.)

The Supreme Court resolved these ambiguities in United States v Bagley. Bagley involved a specific request for Brady material but the court formulated a standard of materiality applicable to all nondisclosure cases. It held that evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense the result of the proceeding would have been different. The Bagley majority rejected the suggestion in Agurs that a defendant who had made a specific request was entitled to greater consideration, and the prosecutor less, in assessing the materiality of the requested evidence. Bagley's rule of reasonable probability is unquestionably the Federal rule for testing materiality in all Brady cases (see, Pennsylvania v Ritchie, 480 U.S. 39, 57 [Powell, J.]; People v Chin, 67 N.Y.2d 22, 33; 2 LaFave Israel, Criminal Procedure § 19.5, at 153 [Supp 1989]).

II

The issue then is whether New York should apply a standard more favorable to defendants as a matter of State law. When presented with such a question, the court exercises its independent judgment to determine the scope and effect of the guarantees contained in the State Constitution; it is not bound by a decision of the Supreme Court limiting the scope of similar guarantees in the Federal Constitution (see, People v Barber, 289 N.Y. 378, 384). Uniformity and consistency, though certainly not controlling, are nevertheless important factors, and the court should not disregard the Supreme Court's decisions merely because it disagrees with them or dislikes the result reached. We explained the appropriate analysis fully in People v P.J. Video ( 68 N.Y.2d 296, 301-303; see also, People v Kohl, 72 N.Y.2d 191, 197; People v Alvarez, 70 N.Y.2d 375, 378-379; see generally, Bonventre, Beyond the Reemergence — "Inverse Incorporation" and other Prospects for State Constitutional Law, 53 Albany L Rev 403, 407-412). Briefly, if the language of the Federal provision and its State counterpart differ, then the State court, after examining the State provision and its textual and historical differences, may conclude that it should be construed otherwise than the Federal provision. Even if the language of the two provisions is the same, however, the court may conclude that a different construction is in order because of noninterpretative considerations. Such considerations include whether the right has historically been accorded greater protection in New York than is presently required under the Federal Constitution, whether it is "of peculiar State or local concern" and whether the State citizens have distinctive attitudes toward the right.

In People v Alvarez ( 70 N.Y.2d 375, supra), we noted that though the language of New York's Due Process Clause differs from that found in the Federal Constitution, the differences are not material and do not suggest inconsistent analysis; if the clauses are to be read differently, the construction must rest on noninterpretative factors. Analysis of those factors establishes that the Supreme Court's decision in Bagley is analytically sound, it is consonant with State law and interests and should be the rule in New York as a matter of State constitutional law.

A.

I turn first to the analytical basis for the Bagley rule.

Due process of law requires, at a minimum, that an accused be prosecuted in proceedings that are fair. The Brady rule rests on the premise that proceedings cannot be fair if evidence is withheld which casts doubt on the guilt of the defendant. The prosecutor serves a dual role as an advocate and public officer, charged not only with the responsibility to obtain convictions but also to see that justice is done (see, Brady v Maryland, supra, at 87-88; United States v Agurs, supra, at 110-111; see also, People v Pelchat, 62 N.Y.2d 97, 105-106). It is the prosecutor's duty, therefore, to deliver exculpatory evidence to the defendant before trial, whether requested or not. If he or she fails to do so, the judgment of conviction must be annulled, not to punish the prosecutor but to insure defendant's conviction has resulted from a fair trial. The omission constitutes reversible error, however, only if the evidence withheld is material.

In defining materiality, the Supreme Court has recognized that in the case of a general request or no request an overly broad construction would unduly burden prosecutors, forcing them to predict the documents in their sometimes voluminous files which might be used favorably by defendants in support of an unknown theory of defense. Inasmuch as omission would result in reversible error, prosecutors could be required to open their entire file to the defense. Whether an open file procedure is desirable or not, it is not the method under which the criminal justice system presently works. We rely on adversarial proceedings to discover truth and determine guilt or innocence.

It was with these considerations in mind that an accused's specific request for Brady material acquired significance. By identifying the material sought, the defendant provided notice to the prosecution and eliminated its need to review extensive files and speculate about the usefulness of the documents to defendant. It was this notice aspect of specific requests which prompted the statement in Agurs, recited in some of our decisions (see, People v Brown, 67 N.Y.2d 555, 559; People v Cwikla, 46 N.Y.2d 434, 441-442), that when the "prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable" (United States v Agurs, supra, at 106). The majority, emphasizing this statement, maintain that the standard of materiality should be more favorable to the accused because of the fault of the prosecutor in failing to turn over identified material and the prejudice from assumptions by the defense as a result of the omission that no such evidence exists. The quotation does no more than express the obvious, however. A prosecutor charged with the duty of delivering exculpatory evidence to an accused should not gamble on materiality when a specific item is requested, thereby risking subsequent reversal, but hand it over, or, if in doubt, ask the court to rule on materiality before refusing to do so (see, United States v Agurs, supra, at 106-107; Note, Specific Requests and the Prosecutorial Duty To Disclose Evidence: The Impact of United States v Bagley, 1986 Duke LJ 892, 909). The good or bad faith of the prosecutor in failing to deliver exculpatory evidence is irrelevant: error results because of "the character of the evidence, not the character of the prosecutor" (United States v Agurs, supra, at 110).

Moreover, although the failure to respond to a specific request may disadvantage a defendant, it does not necessarily do so and if prejudice results from the prosecutor's withholding the defendant should be able to identify it readily. The rule the majority urges rests on a presumption that the denial of due process is more likely to occur than not when a specific request is unanswered. I find no warrant for such a presumption and no harm in requiring the defendant to prove the fact if it is so. Defendant is entitled on review to a consideration that a specific request was made of the prosecutor and, if misled or prejudiced by a failure to comply with the request, then the court must consider the effect that failure had on the outcome of the trial. But the key is the effect the omission had on the trial — not the form the request took.

This case is an illustration of that obvious truth. The charge rested upon arson by explosion and defendant specifically requested the reports of the police experts in an attempt to prove that no explosion occurred. One, expressing doubt on the question, was not turned over to defendant. Manifestly, the missing report was exculpatory and material to the issue of guilt but it did not become more so because a specific request was made for it. Nor would it have become less so if defendant had made a general request. Whether the defendant has been prejudiced by the failure to respond to a specific request is an entirely separate issue to be explored by the court, but absent some showing that prejudice resulted which affected the outcome of the trial, the defendant is not entitled to an advantage on review because a specific request was made.

In urging a higher standard in specific request cases, the majority points out that the Supreme Court decision in Bagley rests in part on the standard adopted for assessing ineffective assistance of counsel claims in Strickland v Washington ( 466 U.S. 668) and that we have not adopted the Strickland standard (majority opn, at 74, n 3). We have not rejected the Strickland standard either, merely finding our own prior decisions established sufficient standards when questions of ineffective assistance of counsel were presented.

B.

In the past when we have departed from the Supreme Court's decisions, we generally have done so because (1) we chose to adhere to our own established law or because the Supreme Court has retreated from previously announced rules (e.g., People v P.J. Video, 68 N.Y.2d 296, supra; People v Johnson, 66 N.Y.2d 398; People v Bigelow, 66 N.Y.2d 417), (2) to establish a more protective State right by constitutionalizing a prior fully developed common-law right (e.g., Rivers v Katz, 67 N.Y.2d 485) or (3) because we have found a separate State rule justified by concerns peculiar to New York State residents (see, Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 N.Y.2d 57, 65).

Of our recent due process cases People v Alvarez ( 70 N.Y.2d 375, supra) most warrants discussion because it concerned exculpatory evidence. In Alvarez defendant contended that the police were required to preserve potentially exculpatory evidence, breath samples, on behalf of a defendant accused of drunk driving offenses. We were asked to announce a due process standard under the State Constitution more protective of defendant than that applied by the Supreme Court when it considered the same Brady argument in California v Trombetta ( 467 U.S. 479). After considering the language of our Due Process Clause and any noninterpretative factors which might warrant a result different from that approved by the Supreme Court in the Trombetta case, we found no reason for departing from the Federal standard to afford New York residents greater protection in Brady cases under the State Constitution. Similarly, I find no basis in the present case to define materiality in a way to extend greater due process protection to New York State defendants than that afforded by the Federal Constitution.

Although never explicitly stated, the thrust of the majority's argument here is that the analytical tests of P.J. Video and Alvarez are satisfied and a different New York rule warranted notwithstanding the similarity of the New York and Federal Due Process Clauses, because New York has established a body of law on the subject by following the Agurs "two-tier" approach (see, majority opn, at 73) and that our law has now been undermined because the Supreme Court has "jettisoned" the fairness considerations outlined in Agurs (see, majority opn, at 75) and adopted the new standard of materiality in Bagley. Accordingly, it contends the Agurs reasonable possibility standard should remain the appropriate rule in New York (majority opn, at 76). Indeed, the majority, noting that Brady v Maryland rests on precedents similar to our decisions in People v Savvides ( 1 N.Y.2d 554) and People v Creasy ( 236 N.Y. 205) suggests that New York rules on exculpatory evidence developed along independent lines parallel to the development of Brady principles in Supreme Court.

The analysis is similar to that we found persuasive in People v Johnson (supra) and People v Bigelow (supra). In those cases we were called upon to elect between applying the Aguillar-Spinelli rules formulated by the Supreme Court, rules which we had followed for many years to test hearsay evidence for probable cause purposes, and the newly stated Gates "totality of the circumstances" rule (Illinois v Gates, 462 U.S. 213). We concluded that we would adhere to our prior decisions as a matter of State constitutional law, rather than change our rules and destabilize the law merely because the Supreme Court had revised its position on the subject.

Similar reasoning is not persuasive in this case for several reasons.

First, until Bagley had been decided the Supreme Court had never ruled on whether the failure to deliver exculpatory matter specifically requested was material in the sense that there was a reasonable possibility that had the evidence been disclosed the result of the proceeding would have been different. A specific request was made in Brady but materiality was not an issue; in Agurs there was no request. Thus, the suggestion that the Supreme Court had adopted a "two-tiered approach" to resolving the question in Agurs in 1975 and then "jettisoned" it in Bagley in 1984 is simply not accurate.

Second, New York has no constitutional rules on Brady material independent of Federal precedents. Although People v Brown ( 67 N.Y.2d 555, supra) and People v Cwikla ( 46 N.Y.2d 434, supra) quoted language from Agurs (see, ante, at 82), neither case required us to decide the appropriate standard for assessing materiality based upon defendant's request for specific exculpatory evidence. Nor do any of the other decisions cited by the majority adopt the Agurs rule. Specifically, in People v Smith ( 63 N.Y.2d 41), defendant made no request, let alone a specific request, for Brady material and we held that the courts below properly denied the claim because the requested evidence was not material. Nor do the cited Appellate Division decisions support the majority's claim. In People v Velez ( 118 A.D.2d 116), there was no request for exculpatory material and no standard for materiality was stated. In People v Pugh ( 107 A.D.2d 521), defendant made a general request and no standard of materiality was stated. In People v Kitt ( 86 A.D.2d 465), the dispositive question was whether the evidence was exculpatory or not. In People v Ramos ( 146 Misc.2d 168, 170), the court, in refusing to follow Bagley, stated that when the prosecutor failed to disclose exculpatory evidence specifically requested reversal was required per se; "[m]ateriality of the nondisclosed evidence is not a factor." That statement does not represent past or present law in New York State or, it would seem likely, anywhere else. No New York case, that I am aware of, has ruled that the failure to disclose specifically requested material is subject to a reasonable possibility standard other than the case before us. Certainly, not enough decisions do so to support the majority's conclusion that New York has developed a body of law on the subject which has now been undermined by the Supreme Court decision in Bagley.

Finally, I cannot agree that People v Savvides ( 1 N.Y.2d 554) and People v Creasy ( 236 N.Y. 205) indicate that New York has developed its own independent body of law on exculpatory evidence consistent with the Agurs dicta. Those cases do not address the requirement that the People deliver exculpatory material to the defense pretrial, they do not deal with Brady evidence at all. Rather, they address the denial of due process because the prosecutor has improperly concealed the fact that trial evidence is false. That the Supreme Court relied on similar decisions in formulating the rule in Brady v Maryland is an interesting but irrelevant coincidence. Nor does the enforcement of Brady in New York rest to any degree on People v Ranghelle ( 69 N.Y.2d 56) or People v Perez ( 65 N.Y.2d 154). Those Rosario decisions are governed by their own rules and rest on separate precedential and statutory authority.

Thus, applying the analysis set forth in P.J. Video (supra), People v Alvarez (supra) and similar cases, there is no analytical basis upon which to interpret New York's Due Process Clause differently from the Due Process Clauses of the Federal Constitution as interpreted by the United States Supreme Court. The majority merely finds arguments rejected by the court in United States v Bagley (supra) more persuasive than those adopted by the court. That is within its power but a disagreement with the highest court in the land based solely on a preference for another rule when the provisions of the two Constitutions read the same raises doubt about our processes and creates instability and uncertainty in our law.

Accordingly, I would adopt the Bagley rule of materiality finding it strikes a fair and proper balance between prosecution and defense and offers the advantages of uniformity and consistency with the Federal standards in criminal proceedings and that any other rule under the State Constitution is not warranted in view of the similarity of the State and Federal Due Process Clauses.

I, therefore, concur.

Judges ALEXANDER, TITONE and HANCOCK, JR., concur with Judge KAYE; Judge SIMONS concurs in a separate opinion in which Chief Judge WACHTLER and Judge BELLACOSA concur.

Order affirmed.