People v. Blair

186 A.D.2d 665
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 13, 1992
StatusPublished
Cited by3 cases

This text of 186 A.D.2d 665 (People v. Blair) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Blair, 186 A.D.2d 665 (N.Y. Ct. App. 1992).

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Friedmann, J.), rendered April 19, 1990, convicting him of manslaughter in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

On May 28, 1988, three men carrying weapons got out of a vehicle and sprayed a house in Queens with bullets, killing Maxcine Peterson, one of the occupants. The three men, along [666]*666with the driver of the vehicle, were indicted on murder and weapon possession charges and were tried jointly (see, People v Steadman, 186 AD2d 693 [decided herewith]). The main prosecution witness was Tony Malloy, who testified that he saw the shooting from a nearby house. He identified the defendant, whom he had known for about nine years, as one of the participants. Following a lengthy trial, the jury acquitted all four defendants of intentional and depraved indifference murder and convicted them of manslaughter in the second degree and criminal possession of a weapon in the second degree.

The defendant contends that he was denied a fair trial because the People failed to disclose the full extent of the promises made to Malloy regarding the disposition of his pending criminal cases. The record reveals that, at the outset of the trial, the defense attorneys were informed that Malloy had already been relocated out of State and provided with rent and expenses of $1,500 and that he would be relocated again "at the conclusion of this case and his case”. At that time, Malloy had several criminal cases pending, and the trial prosecutor indicated that there were no promises made with respect to the disposition of those cases.

During the trial, Malloy testified that he had three felony cases pending against him and that he realized he could receive up to 25 years in prison. He denied knowledge of any discussions with the District Attorney’s office regarding the disposition of his cases before he testified in the Grand Jury about the shooting. On June 9, 1988, a few days after Malloy’s Grand Jury testimony, the District Attorney’s office purchased airplane tickets to Virginia for Malloy and his girlfriend and paid for his first month’s rent on an apartment there. He received a total of $1,500 from the District Attorney’s office. Malloy returned to New York in August 1989 and was arrested that same month and charged with selling narcotics. Malloy said he was told in August 1989 by a member of the District Attorney’s office that he would be relocated in the future but he was not told when that would happen. Malloy further testified that he and his attorney had conversations with an Assistant District Attorney, but the disposition of his pending cases was not discussed. As of the date of his trial testimony, he said he did not know what would happen with respect to his open cases or when he would be relocated. He said he hoped he would not have to go to jail and had asked to be protected if he did. During Malloy’s testimony, his attorney Jonathan Latimer was present and, on his advice, Malloy invoked the Fifth Amendment when questioned about the [667]*667facts underlying his pending cases. At one point during a colloquy between the attorneys and the court, the defense attorneys questioned how Malloy could be relocated unless a disposition of his cases was contemplated. Neither of the two trial prosecutors responded, and Latimer indicated that there were no promises as to the disposition of the pending cases.

Although the record is unclear, it appears that, at some point before the People rested, the defense counsel learned that Latimer had been told that, if Malloy testified truthfully, he would not receive prison time on his pending cases. The defendant’s attorney subpoenaed Latimer, who sought to quash the subpoena on the ground that his testimony would violate the attorney-client privilege. The court ruled that defense counsel could question Latimer about conversations that occurred when both Malloy and representatives of the District Attorney’s office were present but not as to conversations solely between Latimer and Malloy. Defense counsel did not object to this ruling.

Latimer testified that he had conversations with an Assistant District Attorney, who was the trial prosecutors’ superior, and that they had reached an understanding sometime after Malloy’s Grand Jury testimony in June 1988 that Malloy would not receive prison time on his pending cases and that he would be relocated with preliminary living expenses and assistance in finding employment. Malloy had four open cases, three of which were felonies. Latimer stated that it was his understanding that no promises were to be made to Malloy by anyone. The deal was not discussed with the two trial prosecutors and, to his knowledge, they were not aware of the deal. When the trial prosecutors met with Malloy, they asked him how he would answer a question regarding promises that were made to him, and Malloy said there were none. Latimer refused, on the ground of attorney-client privilege, to testify about the information he relayed to Malloy. When asked if Malloy testified truthfully about any deal, Latimer said "it is my understanding that as a result of those conversations that in fact is his understanding”.

Following Latimer’s testimony, the defendant moved to dismiss the indictment or for a mistrial on the ground that the promise regarding the disposition of Malloy’s pending cases was Brady material which should have been disclosed (see, Brady v Maryland, 373 US 83). The court reserved decision until after the verdict, and then denied the motion. The court agreed that the existence of the agreement was Brady material which should have been disclosed to defense [668]*668counsel earlier. The court viewed the actions of Malloy’s attorney and the executive level of the District Attorney’s office as an improper attempt to shield Malloy from revealing Brady evidence and from evidence which could be elicited on cross-examination. However, the court concluded that the defendant was not prejudiced because the agreement was ultimately revealed to the jury, and the manner in which the agreement was revealed was likely to be more prejudicial to Malloy’s credibility than prompt disclosure would have been. The court added that it "cannot adequately express in words its disgust that the trial was impacted by a shabbily structured cooperation charade”.

We share the trial court’s condemnation of the tactics employed here, but conclude that reversal of the defendant’s conviction is not warranted. The law is well settled that " 'the existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles’ ”, as such evidence is relevant to the issue of the witness’s credibility (People v Novoa, 70 NY2d 490, 496; see also, People v Cwikla, 46 NY2d 434). Moreover, if a witness lies on the stand regarding consideration received for his testimony, the prosecutor is under a duty to "correct what he knows to be false and elicit the truth” (People v Savvides, 1 NY2d 554, 557). It is apparent from this record that the agreement was constructed so as to shield the witness and the trial prosecutors from full knowledge of the extent of the consideration given for Malloy’s testimony. The duty to disclose Brady material cannot be avoided by insulating the trial prosecutors from the relevant information, as the prosecutor’s office is considered one entity for this purpose

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Related

People v. McKanney
272 A.D.2d 629 (Appellate Division of the Supreme Court of New York, 2000)
People v. Mangarella
190 A.D.2d 757 (Appellate Division of the Supreme Court of New York, 1993)
People v. Steadman
186 A.D.2d 693 (Appellate Division of the Supreme Court of New York, 1992)

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Bluebook (online)
186 A.D.2d 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-blair-nyappdiv-1992.