Decision and Order By motion dated November 23, 2020, Defendant Clinton James moves this Court for an Order vacating his judgment of conviction pursuant to C.P.L. 440.10. Specifically, Defendant alleges that the People failed to turn over Brady material in the form of video surveillance that purportedly captures police officers kicking him during his apprehension and a “Video Canvas Report” describing the contents of the surveillance video that was made in connection with an IAB Investigation of Officer John Fahim. Statement of Facts and Procedural Background This matter arises out of Defendant’s alleged purchase of a loaded gun from Damon Scott Brannon on March 9, 2013. Mr. Brannon was under surveillance via wiretap by the Staten Island Gang Squad. Detectives Dennis Maira and Anthony Ricci and Officer John Fahim testified at trial that they watched the defendant meet with Mr. Brannon in the Todt Hill Houses and exit Mr. Brannon’s car with a gun before returning to his own car. The officers attempted to stop the defendant and a police chase ensued. When the defendant was stopped at a right light at a busy intersection, Detective Maira approached the defendant’s vehicle. A physical altercation ensued during which Maira was pushed into another car injuring his shoulder and legs. Officer Fahim claimed he saw the defendant reaching for a gun. Fahim shouted “Gun!” and then shot Defendant three times in his stomach. The defendant drove away but crashed his car a few blocks away from the scene of the shooting, causing the vehicle to flip over. The defendant was ultimately apprehended on Quinlan Avenue by Detectives Ricci and Maira as well as Brooklyn Gang Squad Officers Jason Filoramo and Steve Souffrin. The officers asked the defendant about the location of the gun to which he replied that he threw same out of his car window. A gun was ultimately recovered underneath the driver’s seat of the defendant’s vehicle. On March 12, 2013, the defendant was interviewed by a police officer at the hospital. The defendant reported that, while being apprehended and arrested on Quinlan Avenue, he was kicked in the head by a police officer who told him to die. Prior to the commencement of trial, defense attorney Michael Rooney repeatedly asked that the Richmond County District Attorney’s office provide him with any tapes, electronic recordings, Brady material, and all documents and reports prepared by the NYPD, as well as all IAB reports pertaining to the investigation of Officer Fahim. Pre-Trial Proceedings and Trial At the pre-trial suppression hearing, the defendant sought suppression of his statement “I threw the gun out the window” on the grounds that it was involuntary due to the physical and mental strain the defendant was under having been shot and then during his apprehension. While testifying at the hearing, Detective Maira and Officer Filoramo each denied hitting or kicking the defendant during his apprehension on Quinlan Avenue. At trial, Detective Maira and Officer Filoramo again testified that they did not kick or punch the defendant during his apprehension and arrest. Detective Ricci and Officers Souffrin and Fahim testified to the same. The prosecution also called civilian witness Bob Barnett who lived at 111 Quinlan Avenue, who testified that police officers came to his house in search of surveillance footage, but that his video surveillance camera did not record the defendant’s arrest. During their summation, the prosecution referenced the lack of force that officers used to apprehend the defendant. In contrast, the defense referenced the lack of surveillance video evidence capturing the defendant’s apprehension. The defendant was ultimately convicted of Criminal Possession of a Weapon in the Second Degree (Penal Law 265.03(3)), two counts of Assault in the Second Degree (Penal Law 120.05(3); 120.05(2)) and Reckless Endangerment in the Second Degree (Penal Law 120.20). He was acquitted of Aggravated Assault of a Police Officer (Penal Law 120.11) and Assault of a Police Officer (Penal Law 120.08). The defendant was sentenced to an aggregate prison term of twenty-two years to be followed by five years of post-release supervision. Civil Proceeding In 2016 or 2017, Defendant filed a civil rights lawsuit in Federal Court alleging that the police officers used excessive force against him when Officer Fahim shot him and when the officers who apprehended him kicked and punched him during his arrest. During the pendency of his civil lawsuit, at his deposition in March 2018, the defendant learned of the existence of video surveillance footage capturing his arrest. During the course of discovery in the civil case, Corporation Counsel turned over a surveillance video tape of the defendant’s apprehension to his attorney, Michael Lumer, as well as a “Video Canvas Report” dated March 10, 2013 which documents IAB Sergeant Garrity’s canvas of various homes on Quinlan Avenue on the morning of March 10, 2013, and described a video obtained from Miguel Colon’s residence at 120 Quinlan Avenue which captured the defendant’s apprehension. The report contained Sergeant Garrity’s written summary of the video, which stated that “3 persons enter the top of the screen and subdue the person on the ground…[d]ue to distance and quality of the video, investigator is unable to identify and ascertain the roles played by the persons present during the scene.” For whatever reason, this report, and the underlying video, were not turned over to the District Attorney’s Office during discovery in this criminal case. Based on the aforementioned evidence, the Court in Mr. James’s civil matter reopened discovery to allow limited depositions of Souffrin, Fahim, Ricci, Filoramo and Maira with regard to the events depicted in the surveillance video, since the video was only “recently provided” to the defendant. See Affidavit of Michael Lumer. Depositions occurred in late 2019. Each officer continued to assert that the defendant was not struck or kicked in any way during his arrest; however, each of them did admit that the video depicted at least one officer making “kicking motions” towards the defendant. Legal Analysis and Conclusions of Law At the outset, the Court notes that, in addition to moving for vacatur on account of Brady violations pursuant to C.P.L 440.10(1)(h), the defendant has moved for vacatur under C.P.L. 440.10(1)(f) (“improper and prejudicial conduct not appearing in the record occurred during [the] trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom”) and under C.P.L. 440.10(1)(g) (“[n]ew evidence has been discovered since the entry of judgment…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 [it] been received at the trial the verdict would have been more favorable to the defendant.”) However, as the People correctly point out, the Court of Appeals has emphasized that there is a difference between Brady claims and newly discovered evidence claims, and that Brady claims should be analyzed under C.P.L. 440.10(1)(h), not C.P.L. 440.10(1)(g). People v. Wright, 86 N.Y.2d 591 (1995). Consequently, the issue presently before the Court is whether the defendant has established all of the elements of a Brady violation to merit vacatur of his conviction. Brady proscribes “the suppression by the prosecution of evidence favorable to [the] accused where the evidence is material either to guilt or to punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963). In Brady, the Supreme Court held that any exculpatory evidence must be disclosed at a point in the proceedings where the defendant is ensured due process of law. Brady v. Maryland, supra. Exculpatory or impeaching evidence is subject to Brady disclosure only if it is within the prosecution’s custody, possession, or control. People v. Wright, 86 N.Y.2d 591, 596 (1995). The prosecution’s duty to disclose encompasses evidence known only to police investigators and not the prosecutor.” Strickler v. Greene, 527 U.S. 263, at 280-281, see also, People v. Santorelli, 95 N.Y.2d 412, 421 (2000). Additionally, “a prosecutor’s duty of disclosing exculpatory material extends to disclosure of evidence impeaching the credibility of prosecution witnesses whose testimony may be determinative of guilt or innocence.” People v. Baxley, 84 N.Y.2d 208 (1994); see also People v. Waters, 35 Misc. 3d 855, 858 (Supreme Ct. Bronx Co. 2012). Brady’s mandate extends beyond a prosecutor’s actual knowledge; a prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf, including the police. People v. Wright, 86 N.Y.2d 591 (1995), quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995). Here, the Court accepts at face value the People’s representation that the Assistants trying the case had not known of, or viewed, the video at the time of trial, that none had been turned over to them, and that a DD5 report in their file indicated that a canvas for video footage turned up no evidence. Nonetheless, the obligation to disclose Brady material exists irrespective of the good faith of the prosecution. Brady v. Maryland, supra, at 87. While the prosecution has a “broad obligation to disclose exculpatory evidence,” a mere breach of this duty by the prosecution does not constitute a violation of a defendant’s due process rights unless all of the “components of a true Brady violation” are established. Strickler v. Greene, 527 U.S.263 (1999). To make out a successful Brady claim, “a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material.” People v. Feuntes, 12 N.Y.3d 259, 263 (2009). In the matter presently before the Court, the parties agree that the first two essential Brady components are present in this case: the surveillance video and canvas report are favorable to the defendant and were suppressed by the prosecution. The Court’s inquiry thus turns to whether the suppressed evidence was material. When a defendant making a Brady claim made a specific request for evidence, the Court must examine the trial record, evaluate the withheld evidence in the context of the entire record, and determine in light of that examination whether there is a reasonable possibility that the result of the proceedings would have been different if the evidence had been disclosed. People v. McGhee, 46 N.Y.3d 1063 (2021), quoting People v. Giuca, 33 N.Y.3d 462, 476 (2019); People v. Vilardi, 76 N.Y. 2d 67, 77 (1990). Absent a specific request by a defendant for the evidence, materiality can only be demonstrated by a showing that there is a “reasonable probability” that it would have changed the outcome of the proceedings” i.e., a probability “sufficient to undermine the court’s confidence in the outcome of the trial.” People v. Hunter, 11 N.Y.3d 1 (2008), quoting People v. Bryce, 88 N.Y.2d 124, 128 (1996); United States v. Bagley, 473 U.S. 667, 682 (1985). Here, despite the People’s assertions to the contrary, a review of the record reveals that the defense made a specific request for Brady material, including, inter alia, video or electronic recordings from any location “at which any part of the alleged criminal incident occurred,” police “reports, memoranda or records prepared in connection with the investigation of the crime charged, and the arrest of the defendant,” the “names and contact information” of civilian eye witnesses whose statements to police officers “differed materially from the officers involved in this incident.” See Defense Counsel’s Demand to Produce dated June 21, 2013. Additionally, defense counsel made several oral requests for IAB documents and reports pertaining to the investigation of Officer Fahim during multiple court appearances, during which the People represented that they had turned over all of the evidence they had in their possession with respect to same. (See, e.g., Proceedings dated October 13, 2015 pp. 6-8; 15, attached to Defendant’s Motion as Exhibit L; Proceedings dated October 14, 2015, pp. 10-11, attached to Defendant’s Motion as Exhibit M). As the defendant correctly points out, this is noteworthy because the Video Canvas Report was part of IAB’s Preliminary Investigation into Officer Fahim’s shooting of the defendant and was marked by IAB Log Number 13-10066. Having determined that the defense made a specific request for the withheld evidence, the Court’s inquiry turns next to whether there exists a reasonable possibility that the result of the defendant’s trial would have been different had this evidence been disclosed. In People v. McGhee, supra, the Court of Appeals found that there was no reasonable possibility that the People’s failure to disclose the witness statement at issue undermined the fairness of the defendant’s trial or impacted the verdict as the undisclosed witness’s description of the shooter and his flight path did not differ in any material respect form that of the eyewitness who identified the defendant in court as the perpetrator. McGhee, supra at 1065. In People v. Smith, 138 A.D.3d 1418 (4th Dept. 2016), the Fourth Department held that evidence regarding a prosecution witness’s status as a paid informant in an unrelated case, as well as any compensation that she received in exchange for evidence implicating the defendant, was not material evidence that had to be disclosed under Brady. In Smith, although the information may have provided additional impeachment material to the defense, there was no reasonable possibility that the result would have been different as the verdict did not turn solely or predominantly on the witness’s testimony, and the witness’s credibility was strongly impeached on more critical issues at trial. People v. Smith, supra at 1419-1420. In People v. Vilardi, 76 N.Y.2d 67 (1990), the Court of Appeals held that the prosecution’s failure to disclose, in response to the defendant’s discovery request, a report previously prepared by one of its expert witnesses in indicating that he found no evidence of arson during his “contemporaneous and avowedly ‘thorough’ inspection of the bomb site.” Id. at 78. The Court of Appeals held that the disclosure of this evidence, and the defendant’s ability to impeach the witness with same, “may have caused the jury to discount his contrary assertion on trial…and may have led to a trial strategy that resulted in a different outcome.” Id. Unlike the circumstances in McGhee and Smith, the Court finds that in this case there is a reasonable possibility that the defendant would not have been convicted had the video surveillance and Video Canvas Report been made available to him at trial. Where a witness’s reliability may be the dispositive factor in assessing a defendant’s guilt or innocence, material evidence that casts doubt on the reliability of that evidence is per se exculpatory and justifies a new trial irrespective of good faith or bad faith on the part of the prosecution. Giglio v. United States, 405 U.S. 150, 154 (1972), citing Napue v. Illinois, 360 U.S. 264, 269 (1959). Although it is true that the People presented other evidence of the Defendant’s guilt, the only eyewitnesses to the defendant’s gun possession were the police officers who testified at the pre-trial suppression hearing and at trial. Each of the officers testified under oath that none of the police officers had used physical force against the defendant during his apprehension. This testimony is contradicted by the images depicted in the surveillance video obtained during the course of discovery in the defendant’s civil lawsuit. The Court’s own review of the footage reveals that a jury viewing same could reasonably have determined that the video depicts an officer kicking the defendant. It is clear to the Court that access to the surveillance video and Video Canvas Report by the defense could have allowed the defendant to develop additional facts that could have aided him in supporting his defense- that officers planted the gun and either lied about the defendant’s statements in an effort to cover up the unjustified shooting of the defendant or, in the alternative, the defendant’s statement about throwing the gun out the window was made involuntarily as the result from physical force from the officers. Thus, there is certainly a reasonable possibility that had the defense been provided with the undisclosed evidence, they could have developed a trial strategy that might have led to a different outcome for the defendant. See People v. Vilardi, supra. Had the defendant been provided with the surveillance video and Video Canvas Report, they could have presented them to the jury during the trial and questioned the police witnesses about the contents contained therein. The jury would have been able to view the video and in conjunction with viewing the officers’ live testimony, assessed the witnesses’ credibility accordingly. Viewing the video in the context of the detectives’ testimony could potentially have “put the whole case in such a different light” as to effectively discredit the officers’ testimony. See People v. Kyles 514 U.S. 419, 435 (1995). The video was favorable to the defendant to the extent it might very well have impeached the detectives’ testimony in the minds of the jury. People v. Garrett, 23 N.Y. 3d 878, 886. Without this evidence, however, the defense was unable to effectively challenge and potentially impeach the People’s key witnesses — all of whom are members of the New York City Police Department. Consequently, for the reasons set forth above, Defendant’s motion to vacate his judgment of conviction is granted and a new trial is hereby Ordered. By virtue of this Decision and Order, the Defendant’s sentence is also vacated and the Defendant is to be produced in Court on October 19, 2021. The foregoing constitutes the decision and Order of the Court. Dated: October 19, 2021
