This case is not published in a printed volume and its disposition appears in a table in the reporter.
Richard Lance Buchter, J.
The defendant moves to set aside the jury verdict convicting him of Reckless Endangerment in the First Degree, and Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Third Degree pursuant to CPL 330.30(1) and either dismissing those counts or, in the alternative, setting them down for a new trial, and for further relief.
The defendant was charged under the above-captioned indictment with Murder in the First Degree, Murder in the Second Degree (two counts), Attempted Murder in the Second Degree, Assault in the First Degree, Reckless Endangerment in the First Degree, Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Third Degree.
After a trial by jury, the court accepted the following partial verdict: not guilty of Murder in the First Degree; not guilty of Attempted Murder in the Second Degree, guilty of Reckless Endangerment in the First Degree, guilty of Criminal Possession of a Weapon in the Second Degree, and guilty of Criminal Possession of a Weapon in the Third Degree. The jury was unable to reach a unanimous verdict with regard to the two counts of Murder in the Second Degree and the single count of Assault in the First Degree, whereupon this court, with consent of the parties, declared a mistrial with regard only to those three counts.
The defendant contends that the verdict of guilty rendered on certain counts must be set aside because the prosecution intentionally withheld and suppressed highly relevant Brady material establishing a legitimate claim of self-defense.
Evidence was adduced at trial that the defendant was arrested on January 4, 2007 and gave a videotaped statement wherein he admitted firing a gun, but maintained that he fired only after he saw one of the victims waving a gun and observed a shot fired in his direction. At the time of defendant's statement, the police, who had canvassed the area of the shooting, had statements from several persons that one of the victims, Rashard Peppers, had a gun that night and that more than one gun had been fired at the time of the incident. Additionally, several witnesses told police that shortly before the homicides, a group, which included Rashard Peppers, had committed a gunpoint robbery of a marijuana dealer in a nearby apartment building.
There were also numerous police reports generated which contained information relating to Rashard Pepper's possession, use and firing of a weapon prior to and during the incident. These reports were not furnished to defendant until July 5, 2007, approximately four days prior to trial. Furthermore, the record indicates that defendant's former and current counsel were never told of this information despite demands for Brady material. Additional information regarding the presence of guns, including the videotaped statement of Malik Hogan, who was also arrested with regard to this incident, was turned over to defendant only after opening statements. Upon receipt of this information by the defense, counsel for the defendant directed his investigator to attempt to locate the witnesses named in the police reports and to further develop the information. However, certain of the exculpatory witnesses mentioned in the police reports could not be located by the defense.
Under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, defendant is entitled to disclosure by the People of evidence favorable to the accused where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecutor, and to withhold or suppress such material violates the due process clause of the 14th Amendment. The suppression by the prosecution of evidence favorable to and requested by an accused violates Due Process . To be considered exculpatory and therefore subject to disclosure under Brady, the withheld evidence must actually bear on the issue of the defendant's guilt or innocence.
In Leka v. Portuondo, 257 F.3d 89 (2nd Cir.2001), citing Strickler v. Greene, 527 U.S. 263 (1999), the court set forth the following standards:
There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.
With regard to the first requirement, clearly the information withheld by the prosecution satisfies the first component in that information that Rashard Peppers participated in a gunpoint robbery just prior to the homicide and that several witnesses placed a gun in his hand at the time of the shooting goes directly to defendant's defense of justification and is clearly favorable to defendant.
With regard to the second component, the prosecution was in possession of this material for approximately three and one half years and disclosed it only four days prior to trial. In Leka, supra, the prosecution waited approximately twenty-two months before turning over ...