Opinion
Indictment No. 93-0341
08-23-2023
The People of The State of New York v. Brian Scott Lorenzo and James Pugh, Defendants.
John J. Flynn, Esq. Erie County District Attorney BY: Danielle E. Phillips, Esq. Colleen Curtin Gable, Esq. Natalie A. Lesh, Esq. Assistant District Attorneys Attorney for the People Ilann M. Maazel, Esq. Emma Freeman, Esq. Attorneys for Defendant, Lorenzo Zachary Margulis-Ohnuma, Esq. Tess Cohen, Esq. Attorneys for Defendant, Pugh
Unpublished Opinion
John J. Flynn, Esq. Erie County District Attorney BY: Danielle E. Phillips, Esq. Colleen Curtin Gable, Esq. Natalie A. Lesh, Esq. Assistant District Attorneys Attorney for the People
Ilann M. Maazel, Esq. Emma Freeman, Esq. Attorneys for Defendant, Lorenzo
Zachary Margulis-Ohnuma, Esq. Tess Cohen, Esq. Attorneys for Defendant, Pugh
HON. PAUL B. WOJTASZEK SUPREME COURT JUSTICE
On February 17, 1993 Deborah Meindl was brutally murdered in her home located at 84 Franklin Street in the City of Tonawanda at approximately 2:30 p.m. She was stabbed multiple times, strangled with a necktie, handcuffed behind her back and beaten. Her then 10-year old daughter Jessica discovered her mother's body on the family's dining room floor when she got home from school at 3:00 p.m. The defendants, Brian Scott Lorenzo and James Pugh, were identified as suspects by an FBI Confidential Informant within a short time of the homicide and the City of Tonawanda Police Department commenced their investigation into their possible involvement. An extensive investigation ensued leading to an indictment charging both defendants with Deborah Meindl's murder along with related burglary counts.
Special Agent Roger Lunde provided the information to City of Tonawanda police detectives without revealing the source's identity. He testified at the 440 hearing, but his testimony was limited to confirming that none of the trial witnesses was the Confidential Informant. To this day, the Confidential Informant has not been identified. (see U.S. ex rel Touhy v Ragen, 340 U.S. 462 [1951]).
The defendants were convicted after a jury trial largely on the admissions they made to several friends and associates they encountered shortly after the crime and a 1921 Morgan S Silver Dollar contained within a cardboard holder that had writing on it. The coin was recovered from a duffel bag seized from a stolen car driven by Defendant Lorenzo when he was arrested in Sioux City, Iowa with James Baglio on unrelated charges several months after the homicide. In Lorenzo's case, six separate witnesses testified with varying degrees of detail that he bragged that he killed the victim when she surprised him and co-defendant Pugh in the midst of a burglary (see People v Lorenzo, 224 A.D.2d 924 [4th Dept 1996]) . Some of the same witnesses, including jail house informants and James Baglio, testified against defendant Pugh. No physical evidence tied defendant Pugh to the crime scene.
Defendant Lorenzo was sentenced to 37 2 years to life (he remains in the custody of the Department of Corrections and Community Supervision [DOCCS]) and Defendant Pugh received 25 years to life (he was released to parole supervision after serving 28 years). Both defendants maintain their innocence to this day. Both defendants' appeals were denied and their applications for leave to the New York Court of Appeals were similarly denied. Pugh filed a CPL 330.30 motion at the time of sentencing which was denied by the trial court and both defendants filed CPL 440.10 motions which were similarly denied.
The defendants have moved pursuant to CPL §440.10 to vacate their convictions and dismiss the indictment or in the alternative for a new trial on the grounds of newly discovered evidence (DNA exclusion of the defendants from all the crime scene evidence among others) and actual innocence as indicated by the investigation of the Erie County District Attorney's conviction integrity unit pointing to third party culpability. Importantly, the defendants have argued that the prosecution's failure to disclose Cyril Meindl's inability to identify the 1921 Morgan S Silver dollar he allegedly gave to his son (Donald Meindl) and his daughter-in-law (Deborah Meindl) constitutes a clear Brady violation warranting vacature of their convictions.
A hearing was granted by this Court and voluminous, reliable hearsay evidence was admitted under the authority of People v Hamilton (115 A.D.3d 12 [2d Dept 2014]). The following individuals testified: Assistant District Attorney Michael Hillery, former Assistant District Attorney David Heraty, James Baglio, David Sweat, Jodi Luedemann, Joanne L. Wampler Lorenz, Nancy Allison Rolando, Craig Lorenz, Gabriel Rodriguez, Joseph Folgert, Robert K. Wittman, defendant James Roman Pugh, Barbara Arneth, Roger Lunde, Jonathan Coughlan, Michael Rogers, and Salvatore Valvo.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BURDEN OF PROOF:
The burden of proof is on the defendant and, at any hearing on the motion, the defendant must prove, by a preponderance of the evidence, every fact essential to support the motion (CPL440.30[6]).
The defendants here have set forth three primary arguments as the basis for their CPL 440 motions: actual innocence, newly discovered evidence, and Brady violations requiring a new trial.
ACTUAL INNOCENCE:
The defendants have advanced an alternative theory as to whom the perpetrator(s) of the crimes may be. Pursuant to the defendants' motion, Assistant District Attorneys Heraty and Hillery were assigned to re-investigate the case. After reviewing witness statements from Norma Richau, the Meindls' neighbor, describing a white, medium built 5' 10" clean cut male wearing a baseball cap that entered the backyard at 84 Franklin Street and never exited, they decided to look into notorious Tonawandan Richard Matt. Matt made international news when he and fellow Clinton Correctional Facility inmate David Sweat escaped from prison in 2015. Their exploits were the subject of an extensive manhunt that ultimately led to Matt's death and Sweat's return to prison to serve the remainder of his life sentence without the possibility of parole.
It should be noted that the defendants also explored an alternative theory of the commission of the crimes charged in the indictment at trial through their extensive cross-examination of the victim's husband, Donald Meindl, who was initially the main suspect in her murder. Defense counsel for defendant Lorenzo cross-examined Donald Meindl extensively on his motives, e.g. life insurance proceeds to start a business and his illicit sexual affair with a 17-year old subordinate at the Taco Bell he managed. He was also questioned about planning to pay someone to kill his wife pursuant to such motives (see People v Primo, 96 N.Y.2d 351 [2000]; see also Chambers v Mississippi, 410 U.S. 284 [1973]; People v Woody, 24 A.D.3d 1300 [4th Dept 2005]; People v Narrod, 23 A.D.3d 1061 [4th Dept 2005]).
While this third-party culpability theory may appear to be plausible, it was roundly rejected by the trial jury in 1994.
The new theory advanced by the Erie County District Attorney's conviction integrity duo is based almost entirely on the testimony of convicted murderer and 2015 Dannemora escapee David Sweat who initially denied having any information relative to their inquiry about fellow escapee Richard Matt's involvement in the Deborah Meindl homicide. The balance of the theory is based on Detective Bentley's dubious reputation as a Tonawanda Detective and unsubstantiated speculation and conjecture. The defendants called several witnesses at the hearing to establish alleged extensive coercion by Detective Bentley to secure desired testimony which in essence framed them and steered the investigation away from him and Matt. Defendant Pugh also testified and denied making any incriminating statements to trial witnesses and providing an alibi that he was busy burglarizing another dwelling far away from the city of Tonawanda when the crimes he was convicted of were committed. It should be noted that Assistant District Attorney David Heraty admitted that he interviewed David Sweat alone in a correctional facility without the assistance of experienced Erie County District Attorney Investigators and that he provided details of the crime to Sweat in the course of their dialogue. This court closely observed the demeanor of the witnesses and assessed their credibility during the course of the lengthy hearing.
Detective Bentley was interviewed by Assistant District Attorneys Heraty and Hillery at his home in the City of Tonawanda relative to his possible involvement in the Deborah Meindl homicide and his relationship with Richard Matt. Despite no proof of anything remotely substantiating the rumors, speculation, innuendo or conjecture about Bentley's exploits as a Detective for many years in the City of Tonawanda Police Department, a theory was advanced by the duo that he and Matt murdered Deborah Meindl. The two theorized that since Detective Bentley and Richard Matt had a close relationship, almost like father and son, they concocted a plan to commit crimes together and share the proceeds. The speculation was that Bentley would advise Matt of persons on vacation who contacted the Police Department for protection so he could burglarize their homes with impunity. They also suggested Matt would rob drug dealers of their drugs and money under Bentley's tutelage. No actual credible evidence of this illegal conduct was presented. There was also the allegation that Bentley destroyed evidence related to a rape charge against Matt that ultimately got dismissed. Finally there was speculation that Bentley was having an affair with Deborah Meindl and she was killed by him to prevent her from disclosing what she knew about the conduct described above.
In light of their findings, Assistant District Attorneys Heraty and Hillery communicated to the defendants' counsel that they would recommend that the District Attorney of Erie County consent to the CPL §440.10 motion and agree to vacate the convictions. The District Attorney did not consent to the defendants' motion, but the case was reassigned to other prosecutors in the office and opposition papers were filed with the Court.
The key witness called by the defendants toward this end was convicted murderer and Clinton Correctional Facility escapee David Sweat. This Court had the opportunity to evaluate his credibility and review his correspondence to Assistant District Attorney Heraty in which he gave vague details of what Matt allegedly told him about the Deborah Meindl murder without naming either her or Detective Bentley. He described how Matt and "the cop" (Bentley) carried it out and their methods and motives. This information was provided by Sweat several weeks after his initial denial that he knew anything about it, after having had an opportunity to reflect and do research on the case, and after having been provided some details by Assistant District Attorney Heraty during their discussion.
Although Norma Richau is now deceased, her statement describing a person generally matching Richard Matt's description was considered along with the testimony of U.S. Postal employee Nancy Allison Rolando relative to the peculiar and extraordinary occurrences at the Meindl home just prior to the murder. Assistant District Attorneys Heraty and Hillery made their ultimate determination that defendants Lorenzo and Pugh were actually innocent and that Deborah Meindl's murderers were Richard Matt and Detective Bentley. When they communicated their findings to their superiors they were both reassigned and Assistant District Attorney Heraty resigned shortly thereafter. Although both were called to testify about matters that occurred during their employment by the Erie County District Attorney's Office, the Witness Advocate rule did not result in the preclusion of their testimony related to their reinvestigation of the case because the Court precluded any questions seeking testimony relative to their impressions or opinions and limiting testimony to what they personally uncovered during their investigation.
Once the hearing is granted on actual innocence grounds the defendants bear the burden of proof by clear and convincing evidence. If the defendants meet their burden by that standard, the indictment should be dismissed pursuant to CPL §440.10(4), which authorizes that disposition where appropriate. There is no need to empanel another jury to consider the defendants' guilt where the trial Court has determined that no juror acting reasonably would find the defendant guilty beyond a reasonable doubt (People v Hamilton at 27). At the hearing all reliable evidence including evidence not admissible at trial based upon a procedural bar, such as failure to name certain alibi witnesses in the alibi notice, should be admitted. This Court admitted voluminous evidence over the objection of the People in furtherance of the defendants' attempts to establish their burden. Unlike the presumption of innocence enjoyed by an accused, the defendants here are presumed guilty by virtue of their convictions by a jury of their peers after trial (People v Hamilton, supra). In light of the extensive testimony given at the hearing, the numerous exhibits admitted, and the latitude granted counsel on their cases and cross-examinations, this Court has a sufficient basis upon which to render a decision on the ground of actual innocence.
The defendant has the burden of demonstrating his actual innocence by clear and convincing evidence (see People v Davis, 193 A.D.3d 967 [2nd Dept 2021]). "Actual innocence" means "factual innocence, not mere legal insufficiency of evidence of guilt, and must be based upon reliable evidence which was not presented at the trial" (People v Fraser, 165 A.D.3d 697 [internal quotation marks omitted]; see also People v Maxwell, 152 A.D.3d 622 at 623 [2d Dept 2017]). "'Mere doubt as to the defendant's guilt, or a preponderance of conflicting evidence as to the defendant's guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty'" (People v Fraser, 165 A.D.3d at 699 [2d Dept 2018], quoting People v Hamilton, 115 A.D.3d 12, 27, 979 N.Y.S.2d 97).
"[W]ith respect to a claim of actual innocence, as distinguished from a specific constitutional violation, a constitutional violation occurs only if there is clear and convincing evidence that the defendant is innocent." A prima facie showing of actual innocence is made out when there is a sufficient showing of possible merit to warrant a fuller exploration by the Court (id. [internal quotation marks omitted]). This is a higher burden than "a preponderance of the evidence" which is the standard required by C.P.L. 440.30 (6) to be met by a defendant to establish the essential facts on a motion to vacate judgment based on a constitutional violation or newly discovered evidence (People v Hamilton, 115 A.D.3d 12 at 28). The burden of proof on a defendant claiming actual innocence is higher than on a defendant seeking a new trial based on either a constitutional violation or newly discovered evidence, because a defendant claiming actual innocence is no longer presumed innocent after being convicted and, in fact, is presumed guilty (see People v Lobban, 43 Misc.3d 1202 (A) [Sup Ct, Kings County 2014]).
In reviewing a claim of actual innocence for a crime committed over 30 years ago it is imperative that this Court consider only what is relevant and material to the ultimate issue and not be influenced by tangential and unsubstantiated theories of potential third-party culprits. This Court finds David Sweat's testimony to be patently incredible. The theory of Assistant District Attorneys Heraty and Hillery although investigated, explored, and pursued is nothing more than speculation, conjecture, and surmise without any substantiation or corroboration. Accordingly, the defendants' motion to vacate their convictions on this ground is denied in all respects. (see People v Thibodeau, 31 N.Y.3d 1055 [2018]; People v Hamilton, supra). In Thibodeau, the Court of Appeals held that for purposes of determining admissibility of statements under the hearsay exception for statements against a declarant's penal interest, the need for corroborating evidence is especially apparent in high profile cases, as it is not uncommon for individuals to make statements claiming responsibility for notorious crimes they did not commit. Such statements, particularly those made long after someone else has been prosecuted for the offense, should be treated with a fair degree of skepticism. In order for a statement to qualify as a declaration against penal interests, the following elements must be present:
"first, the declarant must be unavailable as a witness at [the hearing]; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, the most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability."(People v Settles, 46 N.Y.2d 154, 167 [1978] (emphasis added and citations omitted) (see also People v Jones, 192 A.D.3d 1524 [4th Dept 2021]). In this scenario, the declarant of the alleged declarations against his penal interest is deceased, and the only alleged supporting circumstance independent of the statement itself is the testimony of a convicted felon and prison escapee that this Court finds totally unworthy of belief.
Applying the standard required of the defendants here in convincing this Court that they are actually innocent because Richard Matt in tandem with Detective Bentley actually killed Deborah Meindl, and then framed them, leads to the conclusion that defendants have failed to meet their burden. As such, their motions to vacate their convictions are denied on this ground.
NEWLY DISCOVERED EVIDENCE:
The Criminal Procedure Law establishes the framework for post-judgment motions seeking to vacate convictions based upon newly discovered evidence.
§ 440.10(1)(g)(g 1)(h). Motion to vacate judgment.
1. At any time after the entry of a judgment, the Court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:
(g) New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence the trial verdict would have been more favorable to the defendant; or
(g-1) Forensic DNA testing of evidence performed since the entry of a judgment, (1) in the case of a defendant convicted after a guilty plea, the Court has determined that the defendant has demonstrated a substantial probability that the defendant was actually innocent of the offense of which he or she was convicted, or (2) in the case of a defendant convicted after a trial, the Court has determined that there exists a reasonable probability that the verdict would have been more favorable to the defendant.
(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United StatesY (CPL' 440.10(1)(g)(g1)(h)). (see People v Hartle, - N.Y.3d -, 2023 NY Slip Op 02029 [2023]).
The Fourth Department in People v Lundy (178 A.D.3d 1389, 1391 [4th Dept 2019]) confirmed the standard for a new trial on the ground of newly discovered evidence:
It is well settled that, in order to establish entitlement to a new trial on the ground of newly discovered evidence, "a defendant must prove that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[ ] (6) which does not merely impeach or contradict the record evidence" (People v Bryant, 117 A.D.3d 1586, 1587, 986 N.Y.S.2d 287 [4th Dept 2014] [internal quotation marks omitted]).
The defendants argued that the plain language in the decision and order issued by Justice John L. Michalski on August 21, 2018 granting their request for DNA testing on several evidentiary items taken from the crime scene automatically entitles them to at least a new trial because if such testing had been done, and if they were excluded as the source thereof and the results of the testing had been admitted in the trial which resulted in a judgment of conviction, there exists a reasonable probability that the verdict would have been more favorable to them. Such argument was rejected by this Court's predecessor, but a hearing was ordered and conducted by this Court over the course of several months. The scope of the hearing was akin to the duration of the original trial.
The DNA testing of the many items excluded the defendants. The results were consistent with their exclusion from the fingernail scrapings taken from the victim which was introduced at the trial albeit in a non-linear fashion. The People's expert witness, lab director John Simich, originally testified that defendant Lorenzo could not be excluded. However, Mr. Simich was later recalled by the People and changed his original testimony based on the results of additional testing. The People contend that since scientific evidence excluding the defendants was already considered by the jury in convicting the defendants, additional scientific evidence excluding them from other items taken from the crime scene would not have led to a more favorable verdict. In other words, there is no reasonable probability that the jury would have acquitted the defendants based on this newly discovered evidence. It should also be noted that the People contend that the defendants proposed third-party perpetrator/accomplice Richard Matt was also excluded from the myriad items tested which impugns to some extent their actual innocence argument.
The defendants also asked the Court to order Detective Bentley to surrender a buccal swab to compare his DNA to the profile taken from the crime scene evidence under the authority of the Matter of Abe A. (52 N.Y.2d 288 [1982]). The Court denied the request as the defendants did not meet their burden. Also, since Detective Bentley videotaped and photographed the crime scene and handled evidence it would not be beyond the realm of possibility to have his DNA present on the items he handled.
The DNA exclusion evidence is newly discovered evidence because at the time of trial in 1994, the technology available to the parties was inferior and not as advanced compared to what was available in 2018 when the testing was ordered. The test results from the victim's fingernail scrapings although consistent with exclusion do not render this new exclusion evidence simply cumulative or superfluous. First, the testimony at trial concerning defendant Lorenzo's exclusion was a correction of earlier testimony from an expert prosecution witness and ultimately a stipulation by counsel. Second, the sheer number of items including dangerous instruments used to cause Deborah Meindl's death which were obviously handled by the perpetrator or perpetrators is of such quality as to not simply impeach or contradict trial record evidence. The other prongs of the test are similarly met as the evidence could not have been discovered prior to the trial and it is clearly material and would have probably changed the result if it had been available and considered by the finder of fact. The issue of DNA evidence was significant enough an issue to cause the jury to send a note to the judge for clarification and/or a readback of expert testimony regarding DNA blood-typing evidence concerning the victim and the defendant Lorenzo during their deliberations, therefore, the defendants have met their burden on this ground.
Beyond the DNA exclusion evidence, the defendants argued that Detective Bentley's coercion of virtually all the trial witnesses to testify adversely against them impugns the integrity of the verdict and similarly constitutes newly discovered evidence that if considered by the trial jury in connection with the exculpatory DNA exclusion evidence, would have led to a more favorable outcome. The witnesses who felt threatened by Detective Bentley were included in the Heraty memorandum and some testified at the hearing.
Joanne Wampler Lorenz testified at the hearing but not at the trial. She told of the coercion of Detective Bentley and his threats that she would go to jail and that he could place her car near the crime scene by a parking ticket issued to it that day. Despite such coercion, she maintained her statement and the timeline it provided. Despite Bentley's deception about proof that her car was at the crime scene, there was no further proof of any improper methods employed by him to induce false information from Wampler Lorenz.
Jeffrey Oryszak, the fiancée of Nancy Hummingbird's daughter (Destiny Rodriguez), told Assistant District Attorneys Hillery and Heraty that he was pressured by Detective Bentley to testify at trial about certain details or his children would be taken away from him. Despite this revelation that he got much of his information from Detective Bentley he did not fully recant his trial testimony. An excerpt from an audiotape of a conversation between defendant Pugh's sister, Barbara Arneth, and Oryszak to this effect was played during the hearing and considered by this Court.
In the recent CPL §440.10(1)(g-l) case People v Robinson (214 A.D.3d 904 [2d Dept 2023]), the Second Department reversed the trial Court's denial of the defendant's motion on the facts and as a matter of discretion in the interest of justice. The judgment of conviction was vacated and a new trial ordered for the murder charge where the defendant was convicted of murdering his estranged wife in 1994. In that case, the defense trial theory was one of mistaken identity. Despite no physical evidence tying the defendant to the crime scene, he was convicted primarily on eyewitness identification testimony of an elderly woman for whom the victim cared at her home. The Court went on to opine "while a defendant needs to show more than a mere possibility that the verdict would have been more favorable to him, he does not have to establish a virtual certainty that there would have been no conviction without the DNA evidence" (see People v Hicks, 114 A.D.3d 599 [1st Dept 2014]). That case similarly featured DNA testing of the victim's fingernail scrapings which excluded the defendant and constituted newly discovered evidence.
Some other recently decided cases have similarly granted defendants convicted of serious crimes new trials or dismissals on the bases of newly discovered evidence and/or Brady violations (see People v Flores, - A.D.3d, 191 N.Y.S.3d 322, 2023 NY Slip Op [1st Dept 2023]; People v Agee, Sup Ct, Niagara County, 2023, Calvo-Torres, J., Indictment No. 2012-042); People v Waters, 35 Misc.3d 855 [Sup Ct, Bronx County, April 5, 2012]); Matter of Kurtzrock, 192 A.D.3d 197 [2d Dept 2020]; People v James, NYLJ, Nov 15, 2021 at 17, col 2 [Sup Ct, Richmond County 2021]).
Because the defendants have met their burden on the basis of newly discovered evidence, the defendants' motion on this ground is granted.
BRADY MATERIAL:
It is undisputed that the only physical evidence linking either of the defendants to the crime scene is the 1921 Morgan S Silver Dollar, encased in a cardboard sleeve with writing on it, recovered from the stolen vehicle defendant Lorenzo was arrested in while he and James Baglio were in Sioux City, Iowa in May of 1993. There were 34 additional silver dollars inside the duffel bag that were loose, none of which were in cardboard sleeves.
The coin would become the key piece of evidence in the trial as it was identified as coming from 84 Franklin Street by Deborah Meindl's husband, Donald Meindl, and her then 11-year old daughter, Jessica Meindl. The coin was important and significant enough to the legal sufficiency of the evidence issue raised by defendant Lorenzo that the Appellate Division Fourth Department cited it as corroborating the several admissions he made to six individuals relative to his involvement in the murder (see People v Lorenzo, 224 A.D.2d 924 [4th Dept. 1996]). An important factor in Donald Meindl's identification and recognition of the coin was his recollection that his father, Cyril Meindl, had given it to him and Deborah for Christmas only months earlier. Unbeknownst to the defendants was the fact that Cyril Meindl, when shown the same coin prior to the trial, did not and could not identify it. This fact was noted in Assistant District Attorney Jonathan Coughlan's trial preparation notes, but not disclosed to the defendants because he considered his notes to be work product. Nowhere in the written discovery correspondence is there any reference to it. It is undisputed Cyril Meindl's inability to identify the coin is Brady material (see People's Memorandum of Law at Page 90, wherein they concede this information constitutes Brady material).
The People contend that Coughlan's hearing testimony indicated that his practice was to turn all Brady material over to the defense, coupled with Defendant Pugh's use of the Cyril Meindl information in a CPL §440 motion in 1998 four years after the trial, leads to the reasonable inference that the defendants were aware of this exculpatory evidence at the time of trial.
Defendant Pugh's 1998 CPL 440 motion relative to the inability of Cyril Meindl to identify the coin reduced to an affidavit obtained by Investigator Peter Vito, which was ultimately denied by the Court, was based on newly discovered evidence, not a Brady violation.
The defendants deny that this disclosure was ever made. Defendant Lorenzo's trial attorney Joseph Terranova while still alive and available was never called as a witness for the parties at the hearing. Donald Meindl was similarly available, although residing without the state and suffering from myriad health issues. He has since died. Defendant Pugh's trial attorney Michael Clohessy is deceased, as is the judge who presided over the trial. This Court must therefore make the determination of whether there was a Brady violation and if so, whether it was based on a specific request for the material at issue or a general and continuing request. The Court finds that the defendants have established their burden that a Brady violation has occurred but have not established their specific request for said material.
A review of the trial transcript reveals the prosecutor referenced the Cyril Meindl gift to Donald and Deborah Meindl in his opening statement and elicited that information in his direct examination of Donald Meindl. He also referenced the Cyril Meindl gift in his summation multiple times. The defendants explored this area on cross-examination of Donald Meindl and argued that the People's failure to call Cyril Meindl as a witness to corroborate Donald Meindl's testimony was problematic and impugned his identification of the coin. The inescapable conclusion is that the People fell short in their Brady disclosure obligation requiring this Court to conduct an analysis to determine if this violation requires a new trial some 30 years after the crime was committed.
"The prosecution is required to disclose information that is both favorable to the defense and is material to either the defendants' guilt or punishment. That duty to disclose encompasses impeachment evidence, as well as exculpatory evidence. The rule applies regardless of the good or bad faith of the prosecutor, for its purpose is not to punish misconduct but to ensure that the accused receives a fair trial." The constitutional duty of a prosecutor to volunteer exculpatory matter to the defense for purposes of the accussed's due process right to a fair trial is not measured by the moral culpability, or the willfulness of the prosecutor; if a prosecutor's non-disclosure of evidence to the defense results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor (see United States v Agurs, 427 U.S. 97, 106 [1976]; People v Santorelli, 95 N.Y.2d 412 [2000]; People v Steadman, 82 N.Y.2d 1 [1993]).
"To establish a Brady violation warranting a new trial, 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 Ulett, 33 N.Y.3d 512, 515 [2019] [internal quotation marks omitted]; People v Rong He, 34 N.Y.3d 956, 959 [2019]; People v Giuca, 33 N.Y.3d 462, 472 [2019]; Brady v Maryland, 373 U.S. 83, 87 [1963]) (see also People v Brownlee, 181 A.D.3d 12651266 [4th Dept 2020]).
In United States v Agurs (427 U.S. 97, 106 [1976]), the U.S. Supreme Court opined that the suppression of exculpatory evidence - evidence favorable to the defense, material either to guilt or punishment or affecting the credibility of prosecution witnesses - or even the negligent failure to disclose such evidence in the face of a specific and relevant defense request will seldom, if ever, be excusable. Thus, where the prosecutor fails to disclose exculpatory evidence which was specifically requested by the defense, the judgment of conviction will be reversed if there is a "reasonable possibility" that the failure to disclose the evidence contributed to the verdict (see People v Vilardi, 76 N.Y.2d 67, 556 N.Y.S.2d 518, 555 N.E.2d 915 [1990]). Where the defense makes only a general request, or none at all, the failure to turn over exculpatory material violates due process only if the omitted evidence creates a reasonable doubt that did not otherwise exist (see People v Baxley, 84 N.Y.2d 208 [1994]; People v Smith, 63 N.Y.2d 41, 479 N.Y.S.2d 706 [1984]; McKinney's Consolidated Laws of New York Practice Commentaries of William C. Donnino). In New York where the defendant did not specifically request the information the test for materiality is where there is a reasonable probability that had it been disclosed the result would have been different (see People v Ulett, 33 N.Y.3d 512, 519 [2019] quoting People v Garrett, 23 N.Y.3d 878, 891 [2014]); (see also People v Hunter, 11 N.Y.3d 1, 3 [2008]).
People v Ulett provides further guidance as to how to apply the "reasonable probability" standard: In determining materiality, the "question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidenceY" The "defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convictY" A defendant need only show that "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Practically, this standard requires us to evaluate the quality of the People's proof against the suppressed evidence -- a process described as "legally simple but factually complexY" (internal citations omitted). The factual analysis is made less complex by the nature of the favorable evidence withheld in Ulett, namely, a video that captured the scene at the time of the murder. That video would have changed the tenor of the trial, placing the People's case in such a different light as to undermine confidence in the verdict. Cyril Meindl's inability to identify the unique coin he allegedly gave to his son is akin to the video evidence described above (Ulett at 520).
Despite the disagreement between the parties as to whether this alleged Brady material was disclosed prior to trial, the record here is sufficient to enable this Court to rule on this crucial issue. In People v Licitra (236 A.D.2d 559 [2d Dept 1997]), the Court determined it was not provided with enough information to make a Brady determination where the People claimed a statement was turned over and the defendant merely said he did not recall receiving it. The Court there concluded the appellant failed to meet his burden of presenting a clear factual record for review. In this case the defendants have provided the Court with more than enough material to rule on the merits of the Brady argument (see People v Ramos, 201 A.D.2d 78 [1st Dept 1994]). Here the defendants have not established a specific request for the exculpatory material at issue, so the Court's analysis is a reasonable probability, and not a reasonable possibility, that had the evidence been introduced at trial a more favorable outcome would have resulted.
HARMLESS ERROR:
The final issue this Court must resolve is whether the Brady violation requires vacature of the defendants' convictions or was harmless error.
Where the defense has not requested the material at all or made a generalized request (i.e. produce all Brady materials) reversal is required only if the omitted evidence was material, that is if there is a reasonable probability that had the evidence been disclosed to the defense the result of the proceeding would have been different (see People v Chin, 67 N.Y.2d 22, 33 [1986]).
Even where a Court has found that the prosecution has violated its obligation under Brady v Maryland (373 U.S. 83 [1963] reversal is not automatic. In People v Steadman ( 82 N.Y.2d 1 [1993], the Court of Appeals employed a harmless error analysis in a scenario where the trial prosecutor's superior worked out a favorable sentencing agreement on three pending felony charges with the prosecution's star witness' attorney which was never communicated to the prosecutor or the witness. The Court ruled that the benefit conferred was B rady material and although the trial prosecutor and the witness were unaware of the deal, the prosecution was charged with the knowledge of fellow colleagues in their office. Therefore, there was a duty to correct false testimony. A Prosecutor's obligation to correct false testimony given by prosecution witnesses and to disclose Brady material are duties exercised by individual prosecutors and shared by the prosecutor's office, as a whole. The Court granted the defendant a new trial finding the error was not harmless (see id.).
However, in People v Fineout (139 A.D.3d 1394, 1395 [4th Dept 2016]), the Fourth Department held that Brady violations in that case constituted harmless error because "there is no reasonable possibility that they might have contributed to the verdict." In Fineout there was no reasonable possibility that failing to disclose that a witness had been offered consideration to induce his testimony against the defendant would impact the verdict because there was overwhelming evidence of defendant's guilt and "the verdict did not turn solely or even predominantly on the testimony" of the witness (Fineout at 1395-1396).
In the instant case, the significance of the coin cannot be overstated and in the view of this Court the verdict turned on the value of the identification of the coin. Thus, a harmless error analysis is not appropriate with respect to either defendant, especially in light of the Court's determination on newly discovered evidence and less than overwhelming evidence against either defendant.
People v Pugh, 236 A.D.2d 810 (4th Dept 1997). In affirming his conviction, the Court opined that even assuming arguendo that the trial Court's admission of the defendant's (hearsay exception) admission by silence to his co-defendant's incriminating statement made in his presence was error, it was harmless in light of the overwhelming evidence against him. Such ruling is limited to that issue and does not extend to all constitutional violations such as Brady violations.
Lorenzo and Pugh were charged as accomplices and they were tried together. Although separate verdicts were rendered against them, much of the evidence was the same. Further, the defendants at trial did not present evidence of the abundance of 1921 Morgan S Silver Dollars in circulation in the United States at the time of the crime. However, at the hearing Retired Special FBI Agent and high value asset expert Robert Wittman testified that between two and four million of such coins were in circulation at the time. He further testified that the circumstances surrounding the identifications of the coin at trial were not conducive to a reliable identification. That factor, coupled with Donald Meindl's statement to agents of the District Attorney's Office regarding Detective Bentley's pressure to identify the coins and Cyril Meindl's inability to identify the 1921 Morgan S Silver Dollar, vitiates the reliability of the coin's evidentiary value and supports the inapplicability of the harmless error analysis.
Additionally, James Baglio's hearing testimony in which he recanted much of his trial testimony and also equivocated on his recognition of the coin and its temporal relationship to his cross-country drive with defendant Lorenzo further supports the inapplicability of the harmless error analysis.
The People argue that the unique coin was also identified by Jessica Meindl, therefore the failure to disclose Cyril Meindl's inability to similarly identify it in light of the overwhelming evidence against them requires denial of the motions. This argument is insufficient to persuade this Court that the Brady violation is harmless error. This Brady violation coupled with the newly discovered evidence presented in this case requires this Court to grant the defendants' motion and order a new trial.
Accordingly, the defendants' motion is denied on the ground of actual innocence and it is granted on the grounds of newly discovered evidence and a Brady violation.
This decision constitutes the order of the Court.