FOIL

In September 1996, a seven-count indictment was filed with the court charging defendant with two counts of murder in the second degree; one count of attempted murder in the second degree; one count of reckless endangerment in the first degree; one count of criminal possession of a weapon in the second degree; and two counts of criminal possession of a weapon in the third degree.

A Queens County Criminal attorney said that the charges stem from a shooting incident, by defendant, which resulted to death and injuries of victims. The evidence at trial established that defendant, in an attempt to shoot the complainant and witness for the prosecution, shot and killed the other. The witness testified at trial on behalf of the People.

Approximately one month after the shooting, defendant was arrested and charged with possession of a weapon during a police organized buy and bust operation. Shortly after his arrest, Defendant told the police that he had just purchased the gun. He told other detectives later that evening about defendant’s crime and how defendant had shot and killed the other victim in his presence.

Another prosecution witness, had been with the deceased, a few storefronts away from the shooting, moments before it occurred. He observed defendant spraying bullets in an arc-like fashion in the direction of the defendant who was across the street. Defendant was arrested, when it was discovered that he was in Detroit, Michigan, and he was returned to New York by detectives. Upon his return to this jurisdiction, he was identified in a lineup.

At trial, the Detective, who microscopically tested 15 9 millimeter casings and two bullets recovered in the vicinity of the shooting, testified that the casings were consistent with the bullets recovered and that the patterns were consistent with an automatic weapon.

Nevertheless, even if a weapon was recovered in the shooting, it would not have been possible to definitively link that ballistics evidence to a recovered weapon, if that was the case, because the fragment of bullet removed from the deceased was too small for analytical comparison.

Defendant was convicted after a trial by jury, of: manslaughter in the second degree; attempted murder in the second degree; reckless endangerment in the first degree; and criminal possession of a weapon in the second degree. Defendant was sentenced as a second violent felony offender to concurrent prison terms of 7½ to 15 years, 12½ to 25 years, 3½ to 7 years, and 7½ to 15 years, respectively.

Initially, defendant claims that he was not provided with material related to the testimony of the witness. Specifically, defendant alleges in this claim that the prosecution failed to turn over “the crime report”, and the “complaint report”, related to the arrest on a gun possession charge, which he subsequently received pursuant to a Freedom of Information Law (FOIL) request.

Moreover, defendant asserts that a violation occurred because favorable evidence possessed by the prosecution was not turned over, which included an initial statement by the witness in which he did not mention witnessing the shooting of the deceased or about being the intended victim of the shooting, and that, during his arrest, defendant agreed to work as an informant for the police to help them purchase guns.

Furthermore, defendant contends that the prosecution failed to correct witness during his trial testimony when he lied when describing his arrest; when he testified that he was the intended victim of the shooting and thus carried the gun he was arrested for possessing because he feared defendant; and when he lied about cooperating with the police.

In opposition, the People argue that defendant has not demonstrated “due diligence” as required by statute to assert a claim of alleged newly discovered evidence pursuant to his FOIL request. Additionally, the prosecution claims that no prejudice occurred, even if a violation is found.

Furthermore, the People contend that defendant’s claim of a violation is meritless.

In response to defendant’s claim that his conviction should be vacated because information was not turned over to him that the People’s witness, the witness, did not mention defendant’s crime to the police at the time of his arrest and that Watson claimed he would work with the police, as an informant, to assist them in purchasing a weapon at the time he was arrested the prosecution asserts defendant is incorrect on the law and facts. First, the People claim that a document provided by defendant, which he annexes as an exhibit to his motion, indicates that the witness did report defendant’s crime within approximately an hour and a half of his arrest and thus refutes his allegation. Second, there is no evidence of any cooperation by the witness with the police to act as an informant; thus, no violation occurred. Moreover, any claims that witness perjured himself is discredited by the reports themselves that defendant now seeks to rely upon to support his claim.

Defendant moves to vacate this judgment, claiming that he was not provided with the material which consisted of what he claims is “newly discovered evidence” consisting of a crime report and complaint report related to the arrest of the witness.

First addressing defendant’s claim of newly discovered evidence, pursuant to CPL 440.10 (1) (g), a defendant may move to vacate a judgment upon the ground that new evidence has been discovered “which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable.” The motion itself must also be made with due diligence after the discovery of the claimed new evidence.

Initially, defendant’s argument that the reports are “newly discovered” fails to meet the above requirements. As defendant claims, the reports could only have been used as impeachment evidence. Furthermore, it is unlikely that these reports would have changed the result of the trial.

Moreover, defendant has not demonstrated that these reports could not have been discovered before trial with the exercise of due diligence, one of the requirements for them to be considered newly discovered evidence.

In any event, as stated above, there is no merit to defendant’s claim that had he possessed the information, the result of the trial would have been different. As held by the Appellate Division, defense counsel adequately impeached the witness during cross-examination. Any issue as to whether he told the police about defendant’s crime at the time of his own arrest is collateral. Furthermore, the District Attorney’s Office has represented that Watson did not cooperate with the police to purchase guns. Burglary was not charged.

The power to vacate a criminal conviction based upon an argument asserting that there exists “newly discovered” evidence rests within the unlimited discretion of the lower court.

This court has reviewed defendant’s claims and finds them to be without merit. Defendant has failed to establish that this was newly discovered evidence.

Despite this court’s rejection of his newly discovered evidence claim, the court addressed the merits of defendant’s assertion, pursuant to CPL 440.10 (1) (h), whereby he alleges that his conviction was obtained in violation of his due process right to pretrial disclosure of material, the reports related to witness’ case, as noted above. The duty of a prosecutor to disclose exculpatory material includes the disclosure of evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of innocence or guilt.

First reviewing the crime report from witness’ own arrest, it is this court’s finding that it does not constitute material. The issue defendant raises is that Watson did not tell the police about defendant’s crime when he was arrested. This is refuted by the report provided by defendant as exhibit 7 to his motion, as noted previously.

The report defendant now refers to as material does not mention defendant. It is not favorable to defendant and not material to guilt or innocence and its disclosure would not likely have any effect on the verdict. Furthermore, the report in defendant’s possession, which is annexed to defendant’s motion, is filled out by the Detective and it indicates that he and the Detective interviewed the witness when he was arrested.

Thus, the witness made a statement to them about defendant’s crime. The multi-page crime report annexed as defendant’s exhibit 6 was taken by different officers, the Detective of the Queens Narcotics District, the detective who arrested the witness for the gun possession, and his partner,. Thus, it is of no consequence if the witness did not mention defendant’s crime to the arresting detectives. This is not exculpatory information and not Brady material and would not likely have an impact on the verdict.

Defendant’s next contention that a violation occurred based on the witness allegedly having some type of agreement with the police, presumably for his own benefit, to purchase guns for them is equally without merit. There is no evidence that any such agreement existed or that the witness ever purchased guns by working in conjunction with the police department.

A defendant must demonstrate prejudice to succeed upon a violation claim made by way of a CPL 440.10 motion. Here, defendant has failed to show prejudice, i.e., a reasonable possibility that the prosecution’s failure to make a disclosure materially contributed to the verdict.

Defendant has not demonstrated that prejudice resulted from a failure to turn over the documents he now possesses. First, the exhibit annexed to defendant’s motion, is the complaint report from witness’ arrest. In that report it outlines that witness told the detectives in an interview at approximately 11:45 P.M. on the day of the incident that he had a fight with defendant on the day of the shooting about drug crimes. He then goes on to describe the shooting when he saw defendant shoot the victim.

Thus, defendant’s claim that witness did not report defendant’s crime when witness was arrested for the gun possession is refuted in this document and it does not further his argument that witness did not report it at the time of his arrest. Thus, the record amply demonstrates that nondisclosure of the report that does not mention defendant was harmless.

Next, in further support that prejudice has not been demonstrated is the decision rendered by the Appellate Division when it affirmed defendant’s conviction. In its decision, the Appellate Division ruled that the trial court’s limitation on defense counsel’s cross-examination was proper. As stated above, the Appellate Division noted that defense counsel had elicited from witness that he lied to the police in his initial statement, that he lied to the grand jury, and that he was a drug dealer committing a drug criminal act, and that the trial court’s limitation on counsel to further impeach the witness was proper. The Appellate Division found that the issues raised on cross-examination of Watson were too slight, remote or conjectural to have any legitimate impact in deciding that facts in issue in reaching its holding. Thus, defendant cannot now and has not demonstrated prejudice as a result of not having the documents at issue. Thus, even if a violation occurred, it was harmless error and it has not been demonstrated that the outcome of the trial would have been different.

The court has reviewed all of defendant’s contentions and finds them either procedurally barred or without merit as outlined herein.

Criminal cases should be handled with diligence and caution, since this involves imprisonment as penalty. Here in Stephen Bilkis and Associates, we have Queens County Criminal attorneys who are always available for consultation on this kind of cases. Particularly, we have Queens County Drug lawyers who will also defend the defendant in case the latter was found to be a victim of a frame-up or instigation.