The opinion of the court was delivered by: Ciparick, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
In this appeal, we are asked to determine whether the People committed a constitutional violation (see Brady v Maryland, 373 US 83 ) by their non-disclosure to defendant of a "record of consultation" prepared by a hospital psychiatrist who interviewed a rape victim and noted her feelings of depression and minimal marijuana use. Because the undisclosed document is not material, the People's non-disclosure, while ill-advised, does not constitute a Brady violation.
The 22-year old female victim testified that in the early morning hours of January 27, 2002, she, her friend and her friend's mother and sister together boarded a Brooklyn-bound train at Times Square, in Manhattan, to return home, after spending the evening at an arcade. The victim, who resided in a different neighborhood than her friends, switched trains and continued her journey alone. As she walked home, she noticed defendant walking closely behind her. He entered the building and while inside the elevator, he placed a knife to her neck and threatened to cut her if she resisted. He then led her to the roof of the building, where he sodomized and raped her.
The victim further testified that, after the rape, defendant forced her to walk with him to the subway. During the walk, he casually conversed with her. Before boarding the train, he took the victim's cell phone, turned it off and wiped it with his shirt sleeve, while also warning her not to call anyone or to report the crime. Out of fear, she did not call the police at that time, nor tell her mother of the rape when she returned home. However, several hours later, the victim went to her friend's apartment - the same friend she had been with the night before - and told her and her mother about the rape. She then sought medical attention at a local hospital. Hospital staff performed both a physical and psychiatric examination and prepared a "rape kit," which yielded a male DNA sample.
The police were notified and they interviewed the victim, who provided details about the rape and a description of the perpetrator. It was not until January 2004, however nearly two years after the rape occurred - that the medical examiner issued a report stating that the sample taken from the victim matched defendant's DNA. Further DNA samples taken from defendant confirmed that his DNA matched the DNA extracted from the victim.
Defendant was arrested and indicted for rape in the first degree and sodomy in the first degree (Penal Law §§ 130.35 , 130.50 ) and the case proceeded to a jury trial. The victim, along with her friend, testified at the trial, describing the January 27th visit to Times Square and the return trip home. The friend testified that the group did not meet defendant that night, either at the arcade or on the subway ride to Brooklyn.
The victim's medical records had been disclosed to defense counsel under the People's open file discovery agreement and were admitted into evidence by the People during their direct case. The records noted that there was no external or internal trauma on the victim's body, but a sexual assault forensic examiner from the treating hospital explained that the absence of such physical trauma in rape cases is common. Included with the medical records admitted into evidence - but not in the copy previously made available to defense counsel - was a one-page record of consultation by a hospital psychiatrist who interviewed the victim as a matter of hospital protocol. Unaware of its existence, defense counsel did not cross-examine any of the People's witnesses regarding the information contained in the consultation note.
Defendant testified at trial that he met the victim in an arcade in Times Square, where he was socializing with two of his friends, and that she led him on a train ride to her neighborhood in Brooklyn. Upon reaching the victim's apartment building, defendant claimed that she led him up to the roof. According to defendant, the victim was sexually aggressive and they had consensual sexual intercourse. Afterwards, defendant testified that the victim voluntarily escorted him to the subway. According to defendant, she became enraged when he told her that he was not interested in seeing her again and she threatened him, saying he would come to regret it. He denied turning the victim's cell phone off, wiping it clean or threatening her.
A private investigator testified for defendant that the victim had previously corroborated defendant's version of events preceding the alleged rape. According to the investigator, he questioned the victim in her apartment for five to ten minutes and she told him that she met defendant in an arcade in Manhattan, left with him voluntarily and did not mention that she was raped. The investigator admitted that he did not make any record of the interview.
During summation, defense counsel, while leafing through the medical records in evidence, discovered the undisclosed one-page consultation note that had never been turned over to him pursuant to the parties' open file discovery agreement. Defense counsel demanded a mistrial. The People responded that they did not turn over the document because they believed it to be privileged. At defense counsel's request, the court removed the document from the medical records, neither side mentioned it to the jury during closing arguments, and the jury never learned of the document. The court reserved decision on defendant's motion for a mistrial.
The jury found defendant guilty of first-degree rape and first-degree sodomy. Defendant filed a written motion to set aside the verdict (see CPL 330.30 ,). Supreme Court denied the motion, opining that the contents of the document would not have changed the outcome of the trial as the document did not materially bear on defendant's guilt or innocence. The court also noted that defendant received the document during trial and had an opportunity to utilize it.
The Appellate Division affirmed, holding that there was no Brady violation because defendant was given a meaningful opportunity to use the document during the trial. A Judge of this Court granted defendant leave to ...