OPINION OF THE COURT
R.S. Smith, J.
During defendant’s trial, the court became aware that a Brady violation had occurred at a pretrial suppression hearing, when the People failed to disclose facts harmful to the credibility of their only witness. The trial court ordered a new suppression hearing, at which defendant was allowed to attack the witness’s credibility with the newly-disclosed evidence, and the People were allowed to call another witness who did not have the same credibility problem. We hold that in choosing this remedy the trial court did not abuse its discretion.
[18] Facts and Procedural History
Defendant was prosecuted for the sale and possession of a controlled substance. He moved to suppress prerecorded buy money and other evidence taken from him when he was arrested, claiming that the arrest was without probable cause.
At the hearing on the motion to suppress, the People’s only witness was Detective Anthony Gordon. Gordon testified that, sitting in a car with his partner Sergeant Archie Washington, he overheard through a one-way radio a conversation about a drug transaction being conducted in another car nearby. In the conversation as recounted by Gordon, two undercover detectives gave money to a man named Maurice Mayo and asked for more drugs than Mayo had with him; Mayo said he would get more from someone named “Ron” and left the car. Gordon said that he left the car and followed Mayo down the street, where he observed Mayo meet defendant and hand him money. Gordon and Washington then arrested defendant.
At the time of Gordon’s hearing testimony some members of the District Attorney’s office knew, though the assistant conducting the hearing did not, that Gordon was the subject of a perjury investigation growing out of a contemporaneous but unrelated case. The investigation began because Gordon admitted to an assistant district attorney that he did not in fact see some drug-related activity he told a grand jury he saw. Eventually — after the trial in the present case — Gordon was indicted for perjury, tried and acquitted.
After Gordon’s testimony at the suppression hearing was completed, the hearing was adjourned for several months. By the time it resumed, the assistant handling the hearing was aware of the perjury investigation of Gordon, but he did not bring it to the court’s attention. The People called no other witnesses, and relied on Gordon’s testimony in opposing the suppression motion. The court denied the motion.
At defendant’s trial, the People did not call Gordon; they relied instead on the testimony of Washington and three other police officers. On the second day of trial, however, defense counsel asked that Gordon be made available as a defense witness. The next morning, the People described the perjury investigation to the court at an ex parte conference, and the court immediately disclosed the existence and the thrust of the investigation to the defense.
There followed a flurry of motions, arguments and rulings, continuing intermittently through the rest of the trial and even [19] after the jury returned a verdict of guilty. Most important for our purposes, the court rejected defense arguments that, as a result of the Brady violation at the hearing on the suppression motion, either the motion should be granted or the hearing reopened for the sole purpose of allowing defendant to use the information about the perjury investigation. Instead, the court conducted a new hearing, at which it received Gordon’s pretrial hearing testimony; a stipulation that Gordon would take the Fifth Amendment if questioned about the perjury investigation or the facts underlying it; and stipulations reflecting some discrepancies between Gordon’s hearing testimony and the testimony he gave as a defense witness at trial. The court also invited the parties to call other witnesses; the People accepted the invitation and called Washington, who described essentially the same series of events that Gordon had.
After the new suppression hearing, the trial court denied defendant’s motion to suppress, expressing doubt about Gordon’s credibility, but finding Washington credible. The Appellate Division affirmed defendant’s conviction, rejecting several arguments based on Gordon’s alleged perjury, including the argument that defendant was entitled to a more limited reopening of the suppression hearing. We now affirm.
Discussion
It is for the trial court, in the exercise of its discretion, to choose a remedy for errors like the one in this case (see People v Jenkins, 98 NY2d 280, 281 [2002]; People v Feerick, 93 NY2d 433, 451-452 [1999]). The trial court did not abuse its discretion in choosing a remedy here.
The error was, as the trial court recognized, a serious one. Under Brady v Maryland (373 US 83 [1963]) and cases applying it, defendant was entitled to disclosure of any “evidence of a material nature [favorable to the defense] which if disclosed could affect the ultimate decision on a suppression motion” (People v Geaslen, 54 NY2d 510, 516 [1981]). There was no excuse for the People’s failure to make the hearing judge aware of the perjury investigation of Gordon — at the same time that the People were asking the hearing judge to rely on Gordon’s testimony to deny suppression. At best, as the People now concede, they were guilty of a significant misjudgment.
But not every significant misjudgment by the prosecution entitles the defendant to a windfall. The trial court here did not find the People’s misconduct to be willful, and nothing in the [20] record suggests that they committed the grossest kind of Brady violation — one that is designed to conceal the truth about the case from the factfinder. Indeed, the record strongly indicates not only that there was probable cause to arrest defendant but that, whether or not Gordon was in general a reliable witness, his account of the events leading to the arrest was largely true. The relatively minor point mentioned in the dissenting opinion — that Gordon originally said he saw money change hands, but later said he saw only movements consistent with money changing hands (dissenting op at 25) — illustrates how little reason there is to doubt the basic accuracy of Gordon’s testimony.
By permitting Washington to testify at the new suppression hearing, the trial court increased the likelihood that the motion to suppress would be decided correctly, based on the best available evidence of what really happened. Defendant argues that Washington’s testimony should have been excluded to punish the People for the Brady violation, and to deter future violations; but courts are not always required to sacrifice justice in the case before them to the possibility of such deterrence. “The principle ... is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused” (Brady, 373 US at 87). The Brady rule exists to prevent miscarriages of justice; the remedy defendant seeks here might well have created one.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
R.S. Smith, J.
During defendant’s trial, the court became aware that a Brady violation had occurred at a pretrial suppression hearing, when the People failed to disclose facts harmful to the credibility of their only witness. The trial court ordered a new suppression hearing, at which defendant was allowed to attack the witness’s credibility with the newly-disclosed evidence, and the People were allowed to call another witness who did not have the same credibility problem. We hold that in choosing this remedy the trial court did not abuse its discretion.
[18] Facts and Procedural History
Defendant was prosecuted for the sale and possession of a controlled substance. He moved to suppress prerecorded buy money and other evidence taken from him when he was arrested, claiming that the arrest was without probable cause.
At the hearing on the motion to suppress, the People’s only witness was Detective Anthony Gordon. Gordon testified that, sitting in a car with his partner Sergeant Archie Washington, he overheard through a one-way radio a conversation about a drug transaction being conducted in another car nearby. In the conversation as recounted by Gordon, two undercover detectives gave money to a man named Maurice Mayo and asked for more drugs than Mayo had with him; Mayo said he would get more from someone named “Ron” and left the car. Gordon said that he left the car and followed Mayo down the street, where he observed Mayo meet defendant and hand him money. Gordon and Washington then arrested defendant.
At the time of Gordon’s hearing testimony some members of the District Attorney’s office knew, though the assistant conducting the hearing did not, that Gordon was the subject of a perjury investigation growing out of a contemporaneous but unrelated case. The investigation began because Gordon admitted to an assistant district attorney that he did not in fact see some drug-related activity he told a grand jury he saw. Eventually — after the trial in the present case — Gordon was indicted for perjury, tried and acquitted.
After Gordon’s testimony at the suppression hearing was completed, the hearing was adjourned for several months. By the time it resumed, the assistant handling the hearing was aware of the perjury investigation of Gordon, but he did not bring it to the court’s attention. The People called no other witnesses, and relied on Gordon’s testimony in opposing the suppression motion. The court denied the motion.
At defendant’s trial, the People did not call Gordon; they relied instead on the testimony of Washington and three other police officers. On the second day of trial, however, defense counsel asked that Gordon be made available as a defense witness. The next morning, the People described the perjury investigation to the court at an ex parte conference, and the court immediately disclosed the existence and the thrust of the investigation to the defense.
There followed a flurry of motions, arguments and rulings, continuing intermittently through the rest of the trial and even [19] after the jury returned a verdict of guilty. Most important for our purposes, the court rejected defense arguments that, as a result of the Brady violation at the hearing on the suppression motion, either the motion should be granted or the hearing reopened for the sole purpose of allowing defendant to use the information about the perjury investigation. Instead, the court conducted a new hearing, at which it received Gordon’s pretrial hearing testimony; a stipulation that Gordon would take the Fifth Amendment if questioned about the perjury investigation or the facts underlying it; and stipulations reflecting some discrepancies between Gordon’s hearing testimony and the testimony he gave as a defense witness at trial. The court also invited the parties to call other witnesses; the People accepted the invitation and called Washington, who described essentially the same series of events that Gordon had.
After the new suppression hearing, the trial court denied defendant’s motion to suppress, expressing doubt about Gordon’s credibility, but finding Washington credible. The Appellate Division affirmed defendant’s conviction, rejecting several arguments based on Gordon’s alleged perjury, including the argument that defendant was entitled to a more limited reopening of the suppression hearing. We now affirm.
Discussion
It is for the trial court, in the exercise of its discretion, to choose a remedy for errors like the one in this case (see People v Jenkins, 98 NY2d 280, 281 [2002]; People v Feerick, 93 NY2d 433, 451-452 [1999]). The trial court did not abuse its discretion in choosing a remedy here.
The error was, as the trial court recognized, a serious one. Under Brady v Maryland (373 US 83 [1963]) and cases applying it, defendant was entitled to disclosure of any “evidence of a material nature [favorable to the defense] which if disclosed could affect the ultimate decision on a suppression motion” (People v Geaslen, 54 NY2d 510, 516 [1981]). There was no excuse for the People’s failure to make the hearing judge aware of the perjury investigation of Gordon — at the same time that the People were asking the hearing judge to rely on Gordon’s testimony to deny suppression. At best, as the People now concede, they were guilty of a significant misjudgment.
But not every significant misjudgment by the prosecution entitles the defendant to a windfall. The trial court here did not find the People’s misconduct to be willful, and nothing in the [20] record suggests that they committed the grossest kind of Brady violation — one that is designed to conceal the truth about the case from the factfinder. Indeed, the record strongly indicates not only that there was probable cause to arrest defendant but that, whether or not Gordon was in general a reliable witness, his account of the events leading to the arrest was largely true. The relatively minor point mentioned in the dissenting opinion — that Gordon originally said he saw money change hands, but later said he saw only movements consistent with money changing hands (dissenting op at 25) — illustrates how little reason there is to doubt the basic accuracy of Gordon’s testimony.
By permitting Washington to testify at the new suppression hearing, the trial court increased the likelihood that the motion to suppress would be decided correctly, based on the best available evidence of what really happened. Defendant argues that Washington’s testimony should have been excluded to punish the People for the Brady violation, and to deter future violations; but courts are not always required to sacrifice justice in the case before them to the possibility of such deterrence. “The principle ... is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused” (Brady, 373 US at 87). The Brady rule exists to prevent miscarriages of justice; the remedy defendant seeks here might well have created one.
Defendant cites People v Feerick (93 NY2d 433 [1999]) in support of his argument that a hearing reopened for the sole purpose of allowing defendant to make use of the newly-disclosed Brady material was the only proper remedy. Feerick does not support this conclusion. In Feerick, the People had failed to turn over certain Rosario material at a pretrial hearing (People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]). In that case, in contrast to this one, it was defendant who sought a de novo hearing, but the trial court only ordered the hearing reopened “to the extent necessary to explore the contents of the Rosario documents” (93 NY2d at 451). We held that this ruling was within the trial court’s discretion (id. at 451-452), but we did not suggest that such a limited reopening is always required as a matter of law. Indeed, in Feerick we distinguished, but did not reject, People v Banch (80 NY2d 610, 619 [1992]), in which we ordered “a new suppression hearing” as a remedy for a Rosario violation. (See also People v Geaslen, 54 NY2d 510, 517 [1981] [new hearing as remedy for Brady violation].)
[21] Nor do People v Bryant (37 NY2d 208 [1975]) and People v Havelka (45 NY2d 636 [1978]) require the remedy defendant here prefers. In both Bryant and Havelka, the People had failed, at a pretrial hearing, to produce enough evidence to justify certain police conduct; in each case, we held it was error to give the People a second chance to produce more evidence, when they had had a full opportunity the first time. This case is different, because there is no claim here that the People’s proof at the suppression hearing was insufficient; the claim was that there was an error at the hearing — that, because of the nondisclosure of Brady material, defendant did not have a fair chance to refute the People’s case. Bryant and Havelka do not hold or imply that a new hearing is forbidden when the result of the first hearing is invalidated by a flaw in the proceeding. On the contrary, a new hearing is the normal remedy for an error in procedure that is not harmless.
Finally, we reject as without merit defendant’s other arguments based on Gordon’s alleged perjury. Gordon’s testimony before the grand jury did not impair the integrity of the grand jury proceeding (cf. People v Pelchat, 62 NY2d 97 [1984]). And the trial court had discretion to reject defendant’s attempt at trial, where Gordon was a defense witness, to elicit the facts underlying the perjury investigation as support for a wholly speculative theory about a police conspiracy.
Accordingly, the order of the Appellate Division should be affirmed.