AD2 order dated December 11, 2013, affirming order denying CPL 440.10 motion without a hearing. Decision below: 112 AD3d 741, 976 NYS2d 220. Smith, J., granted leave August 20, 2014. Argued October 21, 2015.

ISSUES PRESENTED: (1) Ineffective assistance of trial counsel for, inter alia, failure to preserve issues or present relevant evidence. (2) Whether the People committed Brady violations for failure to turn over exculpatory evidence. (Assigned counsel: Joel B. Rudin, 600 Fifth Ave., 10th Floor, NYC 10020.)

Background Facts: Defendant was identified as the man who shot and injured another man in a road rage incident at 4 a.m.  He was convicted after trial in 2006 of numerous serious charges. At trial, citing the “clear link” standard overruled years earlier, the trial court refused to permit the defense to introduce evidence that one Fernando Caban, who resembled the defendant, who lived in the same apartment building as the defendant and into which the perpetrator had retreated, and who was arrested the next day for weapon possession (albeit not one used in the instant case), had committed the crime.   

 

After his conviction was affirmed on appeal, the defendant brought a pro se 440 motion raising, inter alia, a Brady claim based on undisclosed information about Caban’s arrest.  Supreme court summarily denied the motion and did not address the defendant’s repeated requests for renewal and reargument. 

 

Represented by counsel, defendant brought another 440, raising, inter alia, a Brady claim based on information revealed through a FOIL request that Caban had possessed .45 caliber ammunition - that same as used in the shooting and additional inculpatory circumstances surrounding Caban's arrest — and IAC based on defense counsel’s failure to object to the court’s use of the overruled “clear linkage” standard.  In a supporting affirmation, defense counsel stated that he had not researched the law on third party culpability and did not know that the clear link standard had been overruled.  The lower court denied the motion without a hearing.  It stated that the information about the ammunition was neither material nor exculpatory and also contended that despite the prosecution’s concession otherwise, it had been disclosed to the defense as indicated by Rosario material in the court’s own files.  The court also said that it had conducted the proper balancing test for admission of third-party culpability evidence, despite its reference to the clear link standard. 

 

After the Appellate Division’s affirmance, the Court of Appeals granted leave, and, in an opinion authored by Judge Lippman (Judges Piggot and Abdus-Salaam dissented), reversed and ordered a new trial.

 

Held: Defense counsel was ineffective and the prosecution violated Brady. Defense counsel admitted that he was unaware of the correct standard and this failure deprived the defendant of meaningful representation and a fair trial.  The Court did not buy that the lower court actually conducted the proper balancing test as nothing on the record supported that.  Moreover, the Court found prejudice: “Had the court conducted the proper analysis, a determination that the third-party culpability evidence was admissible would have been permissible.” As for the Brady claim, the Court found that information about the ammunition in Caban’s possession and the circumstances of his arrest should have been disclosed and there was “a reasonable possibility that the verdict would have been different” in this case with less than overwhelming proof.  Statements the prosecutor made in countering defendant’s application to admit the third-party evidence were misleading given what the same trial assistant actually knew. 

 

CAL Observes: There are several interesting aspects to this opinion.  Given the defendant’s repeated and futile pro se efforts, including the court virtually ignoring his requests for reargument, the opinion reaffirms (as we already know) the urgent need for counsel on 440 motions.  It does not even appear that the defendant tried to appeal the lower court’s denial of his pro se 440, so, but for counsel’s intervention and framing of the winning issues, defendant’s valid claims would have languished and died.  Also interesting is the Court’s rather forthright discrediting of the motion court — it neither believed that the lower court had actually conducted a balancing test nor that the information about the ammunition was ever turned over to the defense — matters the Appellate Division was perfectly comfortable accepting.  Last, the Court determined prejudice— both on the IAC claim and the Brady claim — on the record before it, while the dissent argued that a hearing was necessary to resolve factual disputes and to determine prejudice.  Perhaps the majority was reluctant to remit to a court that had already demonstrated such hostility to defendant’s claims.