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The People &C v. Kenneth Hayes

May 10, 2011


The opinion of the court was delivered by: Jones, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

This appeal presents two issues for our review. First, whether the failure of the police to interview witnesses after overhearing two potentially exculpatory statements constituted a Brady violation. Second, whether defendant was improperly precluded during cross-examination from challenging the adequacy of the police investigation.


It is undisputed that in the early morning of August 8, 2004, Charles Shell and ten friends attended the 1:00 a.m. showing of a movie in a Times Square theater. In the crowded theater -- a two-level auditorium with a capacity for approximately 578 people -- Shell and his friends were loudly talking during the early portions of the movie when someone shouted at them to be quiet. At this point, the versions of the salient facts diverge.

According to the People, when Shell looked away from the movie, he observed his friends out of their seats and facing a group of approximately ten people standing on the balcony level of the theater. The group, which included defendant Kenneth Hayes, descended from the balcony level. Shell and his friends left their seats to approach the group and observed defendant pacing back and forth in a "rocking motion," saying "Who want it?" When Shell confronted defendant, defendant grabbed Shell's left wrist, blocked his right arm, punched Shell twice in the stomach, and fled from the theater. Shell realized that he had been, in fact, stabbed when he observed blood on his shirt.

Defendant claims that he went to the lower level of the theater to politely ask Shell and his friends to refrain from talking during the movie. After he made the request, Shell leapt from his seat and confronted defendant, making a gesture with respect to his belt -- an indication to defendant that Shell had a weapon. Shell removed a knife from his waistband and swung at defendant with his left arm. Defendant used his left hand to grab Shell's arm and his right hand to wrest the knife away. During the course of the altercation, defendant was pushed onto the stairs leading up to the balcony of the theater. While he was on the ground, leaning on the stairs with possession of the knife, defendant attempted to block a further punch, but the forward momentum of Shell resulted in him being stabbed. Defendant fled the theater to escape an alleged chase by Shell's friends.

Ultimately, defendant was apprehended outside of the movie theater by Sergeant Mack who had observed him fighting within the vestibule of the theater and throwing a metal object into the street -- later recovered and identified as a gravity knife. After the arrest, in the midst of a hectic setting, Sergeant Mack then assigned officers to either secure the crime scene, control the crowd, gather evidence, or interview possible witnesses.

Sergeant Fitzpatrick was tasked with safeguarding the crime scene to prevent contamination of blood evidence. While guarding the location, Sergeant Fitzpatrick overheard two separate individuals claim, "That's the guy (referring to Shell), he had the knife first, he got it taken away from him, he got what he deserved" and "That guy (Shell) pulled the knife out first, the other guy took it away from him." Sergeant Fitzpatrick did not ascertain the identities of the potential witnesses, obtain contact information, or otherwise investigate these two statements.

During trial preparation, Sergeant Fitzpatrick disclosed these two statements to the prosecution, and the People immediately advised defendant of this newfound information. Defendant argued before the trial court that the lack of police investigation of the two statements and the failure to obtain contact information constituted a Brady violation. Defendant also sought to use the statements for the non-hearsay purpose of challenging the completeness of the police investigation. The trial court ruled that no Brady violation was committed by the People and precluded defense counsel, during the cross-examination of Sergeant Fitzpatrick, from eliciting testimony regarding the two statements. After a jury trial, defendant was acquitted of first degree assault, but convicted of second degree assault and weapon possession.

In a 3-2 decision, the Appellate Division affirmed the judgment, holding that the People did not violate their disclosure obligations under Brady and had no duty to obtain the identities or contact information of the bystanders (72 AD3d 441, 441-442 [1st Dept 2010]). Furthermore, the Appellate Division held that the trial court properly exercised its discretion in limiting defendant's cross-examination for the purpose of challenging the thoroughness of the police investigation (id. at 442). A Judge of this Court granted defendant leave to appeal, and we now affirm.


In the seminal case Brady v Maryland (373 US 83, 87 [1963]), the United States Supreme Court held that a criminal defendant's right to due process is violated when the prosecution suppresses favorable evidence that is material to guilt because every criminal defendant should "be afforded a meaningful opportunity to present a complete defense" (California v Trombetta, 467 US 479, 485 [1984]). To establish a Brady violation, 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 Fuentes, 12 NY3d 259, 263 [2009]; see also Strickler v Greene, 527 US 263, 281-282 [1999]).

Here, defendant claims that the police and the People committed a Brady violation by failing to interview, or at a minimum, acquire the contact information of the two individuals who made the statements overheard by Sergeant Fitzpatrick. While defendant's argument is couched in Brady terms, when distilled, he essentially seeks a rule that would impose an affirmative duty upon the police to obtain potentially exculpatory evidence for the benefit of a criminal defendant. However, this Court has declined to impose such an obligation.

In People v Alvarez (70 NY2d 375 [1987]), the defendant, charged with various Vehicle and Traffic Law offenses for intoxicated driving, asked this Court to require the police to obtain and preserve additional breath samples for later testing because the initial samples were destroyed when tested by the police. We concluded that there is no "basis for a rule, sought by defendants in this case, that would require the police to affirmatively gather evidence for the accused" (Alvarez, 70 NY2d at 381). And in People v Reedy (70 NY2d 826, 827 [1987]), where the defendant sought a copy of a personal account written by the victim of an attempted rape, we held, among other things, that the People had no obligation to disclose evidence "not in their possession or control." In addition, the Supreme Court has similarly noted that it is "[l]ess clear from our access-to-evidence cases the ...

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