Opinion
Indictment No. 2875-2013
06-12-2024
People of the State of New York, v. Frederick White, Defendant.
Bronx District Attorney's Office: A.D.A. R. Grace Phillips, A.D.A. Allison J. Kline, and A.D.A. Paul A. Andersen Defense Attorneys: Alexandra Mitter, Esq., and Marika Meis, Esq.
Bronx District Attorney's Office: A.D.A. R. Grace Phillips, A.D.A. Allison J. Kline, and A.D.A. Paul A. Andersen
Defense Attorneys: Alexandra Mitter, Esq., and Marika Meis, Esq.
HON. RAYMOND L. BRUCE, J.S.C.
"EQUAL JUSTICE UNDER LAW" is a legal precept deeply rooted in American jurisprudence extending even to those who are accused or convicted of the most serious crimes in our society. Section 1 of the Fourteenth Amendment of the United States Constitution was ratified in 1868 by the United States Congress in the wake of the American Civil War. It was there the United States government resolved that:
These words, written above the main entrance to the United States Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. See https://www.supremecourt.gov/about/about.aspx [last visited on April 16, 2024].
... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Similarly, the New York State legislature ratified Article I §6 of the New York State Constitution, which in relevant part provides: "No person shall be deprived of life, liberty, or property without due process of law" Additionally, Article I §11 of the New York State Constitution in pertinent part provides: "No person shall be denied the equal protection of the laws of this state or any subdivision thereof..."
U.S. Constitution, 14th Amendment, §1.
Within this historical and constitutional framework arises the paramount issue in Defendant's C.P.L. §440.10(1)(h) motion, which touches upon the cornerstone principles of the American criminal justice system, namely whether the Bronx District Attorney's Office (hereinafter "the People") comported with its constitutional mandate of seeking truth and administering justice by providing the Defendant a fair trial.
This court holds that the People's conduct fell below accepted notions of justice and fairness in that they contravened their Brady obligations by impermissibly withholding from the Defendant Brady, Giglio , and civil litigation materials regarding the numerous allegations of misconduct attributed to Detective Davie Rodriguez (hereinafter "Detective Rodriguez"), thereby, depriving the Defendant of a fair trial. Therefore, the Defendant's C.P.L. §440.10(1)(h) motion must be granted based upon the People's Brady violation, and the ensuing abridgment of the Defendant's due process rights under the United States and New York State Constitutions.
New York State courts have routinely interpreted the seminal United States Supreme Court cases Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) as establishing a defendant's right, under both the State and Federal Constitutions, to discover favorable evidence in the People's possession that is material to guilt or punishment and extends to both exculpatory and impeachment evidence. See People v. Stilley, 128 A.D.3d 88, 7 N.Y.S.3d 52 (1st Dep't 2015).
On September 18, 2013, the People filed Indictment Number 2875/2013, charging Defendant with Murder in the Second Degree (P.L. §125.25[1]) among other related charges for the fatal shooting of Ms. Cleopatra Lovelace (hereinafter "Ms. Lovelace"), which occurred on September 10, 2013. At his Supreme Court arraignment, the Defendant pled not guilty. After motion practice, the court ordered a Huntley/Mapp/Dunaway hearing, which was held on November 1, 2016. On November 3, 2016, Honorable Robert A. Neary denied suppression of the statements and physical evidence and the matter proceeded to trial.
On November 10, 2016, the Defendant's trial commenced. The bulk of the People's case-in-chief relied heavily upon the Defendant's inculpatory statements made after the shooting of Ms. Lovelace. The People called Ms. Lovelace's daughter, Miss Sasha Quamie, (hereinafter "Miss Quamie") as a witness. Miss Quamie's testimony provided the jury background information concerning the Defendant's and Ms. Lovelace's relationship. Notably, although Miss Quamie was present in the apartment during the shooting on September 10, 2013, she did not witness the shooting, nor did she have any personal knowledge of the events that led to Ms. Lovelace's death. However, Miss Quamie did confirm the Defendant's voice on a 911 call. She also testified that she heard the Defendant make a phone call wherein he said, "I did something and I can't go back."
The 911 call was approximately 19 seconds, and it contained a request asking whether "you can come to" a Bronx address. The caller then confirmed the cross-street and tells someone to get dressed.
The People also called Ms. Ebony Gales (hereinafter "Ms. Gales") who was Ms. Lovelace's friend, as a witness. Ms. Gales testified that shortly after the Defendant dropped Miss Quamie at her apartment, she called the Defendant, and he told her "[y]ou know I loved your friend and that he done "something he couldn't take back."
In addition, the People called the Defendant's sister, Ms. Robin White, (hereinafter Ms. White") to testify at the trial. According to Ms. White, shortly after the Defendant dropped off his daughter in common with Ms. Lovelace, Miss Samara White, the Defendant told his sister to "call the police because he killed Tamika." Further, Ms. White testified that on a previous date, the Defendant asked her if she "would be willing to take care of Samara if something was to ever happen to her mother."
The People also called Police Officer Ivan Gomez (hereinafter "Officer Gomez") as a witness. Officer Gomez testified that he was covering the front desk at the time the Defendant entered the precinct seeking to speak to Detective Nicholas Ciuffi. Officer Gomez recounted that the Defendant was "hysterical, crying, whaling [sic], screaming" saying "take me in." Moreover, Officer Gomez testified that Defendant appeared to be "exhibiting despair [and] grief" and that the Defendant repeatedly told him that "I did something bad, I killed her."
Detective Joseph Dietrich (hereinafter "Detective Dietrich") was also called to testify by the People. According to Detective Dietrich he was also present when the Defendant turned himself in at the precinct. Detective Dietrich told the jury that he came over to assist and that he took a gun out of the Defendant's right pocket. Detective Dietrich then testified that after he handcuffed the Defendant, he heard the Defendant say, "I couldn't take it no more [he] had to do it" and that he "shot her." Detective Dietrich then communicated that information over the radio to see if it matched any reported crimes.
Moreover, the People called Lieutenant Hassiem Mitchel (hereinafter "Lieutenant Mitchel") to testify. Lieutenant Mitchel testified that upon being informed of the situation he notified the Bronx Homicide Squad, and Detectives Davie Rodriguez and Thomas Aasheim came to interview the Defendant. Lieutenant Mitchel further testified that he conferred with Detective Rodriguez, and he informed Detective Rodriguez that the Defendant told him that he had "turned himself in saying that he killed his wife."
The People then called their key witness, Detective Rodriguez, to testify. According to Detective Rodriguez, when he entered the conference room where the Defendant was being held, he overheard the Defendant speaking to himself and saying "I shouldn't have done that shit, I ruined my daughter's life. I've been trying my best I was supposed to kill myself with her. I was trying to call Nick [Ciuffi] because I had his number, but I lost my phone."
Detective Rodriguez testified that he escorted the Defendant to an interview room where after reading the Defendant his Miranda warnings, the Defendant confessed to intentionally shooting Ms. Lovelace. Detective Rodriguez testified that the Defendant said that Ms. Lovelace told him to move out, he got his gun from the closet and went back into the bedroom. At that point, Ms. Lovelace said she was going to call the police, which upset the Defendant, so he shot her. Notably, although Detective Rodriguez claims he took written notes of the Defendant's confession, the Defendant did not sign the bottom of the written statement nor was the confession recorded on video.
This court notes that although Detective Rodriguez claimed that the Defendant was read his Miranda warnings,he admitted that the Defendant did not sign or complete a Miranda waiver card.
After the interview, Detective Rodriguez testified that he placed the Defendant in a holding cell. Detective Rodriguez claimed that he heard banging coming from the Defendant's cell. Once Detective Rodriguez arrived at the cell the Defendant told him "I went too far, I went too far." Detective Rodriguez also testified that he visited the Defendant's cell two more times. The first time Detective Rodriguez claimed the Defendant demonstrated how he held the gun five inches away from Ms. Lovelace. On the second visit, Detective Rodriguez inquired with the Defendant if he shot Ms. Lovelace through a pillow, which the Defendant could not recall.
The last witness the People called in their case-in-chief was the medical examiner, Dr. Kristen Landi (hereinafter "Dr. Landi"). Dr. Landi testified that she determined that two gunshot wounds on the left-side of Ms. Lovelace's neck caused her death by injuring her "carotid artery, lung, and spinal cord." Dr. Landi also testified that each gunshot wound was potentially fatal, and she estimated that Ms. Lovelace would have "bled out in a period of minutes" from the injury to her carotid artery. Dr. Landi also concluded that because of the stippling on Ms. Lovelace's cheek and mouth, but not around the gunshot wounds, that something must have been in between the gun and wound, like "for example, you know, a pillow, a hand." Dr. Landi noted that there were "white synthetic fibers" in the wounds that were consistent in appearance with the stuffing of a pillow.
The pillow was tested for gunshot residue; however, the People did not introduce into evidence the results of thetest, nor were the fibers recovered from Ms. Lovelace's gunshot wounds compared to that of the pillow.
At the close of the People's case-in-chief, the Defendant elected to testify on his own behalf. According to the Defendant, on the night of the shooting he and Ms. Lovelace were engaged in an argument. As a result, the Defendant testified that Ms. Lovelace told him "get out" of the apartment. Defendant claims he started to pack his belongings when he noticed that the gun, he kept in the closet was not there. He testified that he went back to the bedroom to ask Ms. Lovelace about the gun, he noticed that she had her hand underneath her pillow. The Defendant alleged that he moved the pillow and saw the gun.
He testified that when he asked Ms. Lovelace for the gun, she would not hand it over. The Defendant then explained to the jury that as he "tried to grab the gun," Ms. Lovelace pulled the gun close to her and with one knee on the bed standing over Ms. Lovelace he was "hold[ing] her wrist with one hand and squeez[ing] the other part [to] take the gun. While he was "squeez[ing] her hand" the gun went off twice "back-to-back, pop pop." The Defendant maintained that while he kept his gun fully loaded, with a bullet in the chamber, the safety was on.
On cross-examination by the People, the Defendant denied confessing to Detective Rodriguez that he intentionally killed Ms. Lovelace. Furthermore, the Defendant claimed that Detective Rodriguez did not explain his Miranda warnings prior to the interview. The Defendant also contested the written confession that Detective Rodriguez transcribed, and he explained to the jury that "I told, always [sic] said from the beginning what I said and what they wrote is two different things." In addition, the Defendant repudiated Detective Rodriguez' testimony concerning his purported demonstration of holding the gun five inches away from Ms. Lovelace. At the conclusion of the Defendant's testimony, the People then were allowed to recall their expert in the field of ballistics operability, Detective James Clontz, (hereinafter "Detective Clontz") as a rebuttal witness.
Detective Clontz testified that the recovered gun, a 9-millimeter Luger Kel-Tex PF-9 semi-automatic pistol, lacked a manual safety mechanism. Detective Clontz also testified that the subject gun lacked a "hair trigger." Therefore, Detective Clontz opined that the gun's trigger would have to be pulled twice at an amount of force equaling five pounds of pressure for the gun to discharge. Although Detective Clontz testified that it was "very unlikely" that the gun could have fired "by accident" he acknowledged that if Ms. Lovelace's finger was inside the trigger guard, "the force [Defendant's] pressure on her finger might have resulted in her firing the weapon."
In summation, the Defendant's attorney focused upon securing a conviction on the lesser included offense of Manslaughter in the Second Degree (P.L. §125.15[1]). The Defendant's attorney argued to the jury that the Defendant's testimony was truthful and he attempted to impugn the veracity of Detective Rodriguez' testimony by claiming that he did not follow proper police protocol by not having the Defendant sign a Miranda waiver card, by not writing the start or end time on the written statement, by not having the Defendant sign the statement, and that he failed to video record the Defendant's confession despite having access to video recording equipment to do so. The Defendant's attorney also argued to the jury that the Defendant's actions comported with his testimony that he accidently killed Ms. Lovelace because he immediately turned himself into the police and he always maintained that "it was an accident and "he was sorry for the fact it happened."
In sharp contrast, during the People's summation they argued to the jury that the Defendant killed Ms. Lovelace in "cold blood" in an effort to control her. The People attempted to use the Defendant's incriminating statements to Ms. Gales and to his sister, to demonstrate that the Defendant intentionally murdered Ms. Lovelace, rather than it being an accidental shooting. The People also bolstered Detective Rodriguez' testimony by claiming that he was "credible," "truthful," and "honest."
On November 28, 2016, the jury found the Defendant guilty of Murder in the Second Degree (P.L. §125.25[1]) and Criminal Possession of a Weapon in the Second Degree (P.L.§265.03[1][b]). On December 14, 2016, the Defendant was sentenced by the Honorable Robert A. Neary, to an incarceration period of twenty-five years to life.
On May 5, 2022, the Defendant filed the instant C.P.L. §440.10(1)(h) motion seeking, inter alia, a vacatur of the judgment of conviction based upon Brady violation claims, and that a new trial be ordered. On August 12, 2022, the People filed an affirmation in opposition and memorandum of law. On September 1, 2022, the Defendant filed a reply memorandum of law. This court rendered its decision and order dated November 7, 2022, wherein it ordered a C.P.L. §440.10 hearing.
On March 17, 2023, a preliminary conference was held to address discovery issues prior to conducting the C.P.L. §440.10 hearing. At the conference, the People made various concessions, on the record. The People admitted that they suppressed and did not disclose to the Defendant numerous Brady, Giglio, and civil litigation materials regarding allegations of Detective Rodriguez' misconduct. On March 24, 2023, the People filed an affirmation wherein they confirmed in writing the concessions they made, on the record, on March 17, 2023. In addition, the People's affirmation provided a synopsis of the Brady, Giglio, and civil litigation materials regarding Detective Rodriguez' misconduct, however, they opposed full disclosure of the same.
On April 7, 2023, the Defendant filed a motion seeking, inter alia, that the People produce all documents in their possession. On May 5, 2023, the People filed a supplemental affirmation in opposition and a supplemental reply memorandum of law opposing the Defendant's request for full disclosure of the Brady, Giglio, and civil litigation materials.
On May 11, 2023, this court rendered its decision and order wherein, inter alia, it compelled the People, over their opposition, to disclose all exculpatory/impeachment materials in their possession in conformity with their obligations under Brady and its progeny.
On June 30, 2023, the People filed an affirmation wherein they made the required Brady, Giglio, and civil litigation disclosures. In all, there were 16 Civilian Complaint Review Board (hereinafter "CCRB") cases of alleged misconduct, and three civil lawsuits lodged against Detective Rodriguez entitled: Enger Javier v. City of New York, et al., No. 21694/2016; Dale Robertson v. City of New York, et al., No. 14-CV-0184; and Dale Robertson v. City of New York, et al., No. 12-CV-03659. Of import, the Javier and Robertson civil lawsuits alleged that Detective Rodriguez, and others, while investigating homicides exacted and fabricated false confessions from the Plaintiffs.
In Mr. Enger Javier's underlying criminal case it was discovered that Detective Rodriguez, and others, ignored Mr. Javier's pleas of innocence and pressured him to falsely confess to a murder that he did not commit. Ultimately, the Bronx District Attorney's Office dismissed the charges against Mr. Javier.
On January 19, 2024, this court held the C.P.L. §440.10 hearing. On March 8, 2024, the Defendant filed a post hearing memorandum of law. On April 5, 2024, the People filed a post hearing submission in opposition. On April 12, 2024, the Defendant filed a post hearing reply memorandum of law. This decision and order follows.
"In Brady v. Maryland, the United States Supreme Court held that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" People v. Rong He, 34 N.Y.3d 956, 135 N.E.3d 1081, 112 N.Y.S.3d 1 (2019), quoting Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). "The Brady rule is based on the requirement of due process, and its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that the accused receives a fair trial." People v. Giuca, 33 N.Y.3d 462, 128 N.E.3d 655, 104 N.Y.S.3d 577 (2019).
"We [the Court of Appeals] have since explained that the People, in their role as truth-seekers in criminal trials, have a broad obligation to disclose exculpatory evidence, but a mere breach of this duty does not offend the defendant's due process rights unless all the components of a true Brady violation are established." Rong He 34 N.Y.3d at 956, 958. "To make out a successful Brady claim, 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. Cordero, 2024 NY Slip. Op. 01877 (1st Dep't 2024).
The first two prongs of the Brady rule were met due to the People's various concessions. It is beyond cavil that the Defendant satisfied the first prong under Brady because the 16 CCRB complaints and three civil lawsuits were undoubtedly evidence favorable to the Defendant as impeachment material. See People v. Garrett, 23 N.Y.3d 878, 18 N.E.3d 722, 994 N.Y.S.2d 22 (2014).
Likewise, the Defendant satisfied the second prong under the Brady rule as the People admitted that prior to starting the Defendant's trial they had actual possession of the 16 CCRB complaints and three civil lawsuits regarding Detective Rodriguez' alleged misconduct. Thus, it is uncontroverted that said evidence was suppressed by the People. See People v. Santorelli, 95 N.Y.2d 412, 741 N.E.2d 493, 718 N.Y.S.2d 696 (2000). Therefore, the only remaining contention revolves around the third prong under the Brady rule namely whether prejudice arose because the suppressed evidence was "material."
"Under the New York [ Brady ] rule, if a general demand has been made, evidence will be deemed material if there is a reasonable probability that had it been disclosed to the defense, the result would have been different-i.e., a probability sufficient to undermine the court's confidence in the outcome of the trial." People v. Bryce, 88 N.Y.2d 124, 666 N.E.2d 221, 643 N.Y.S.2d 516 (1996).
The Defendant in the instant motion did not produce any specific discovery demands from the underlying criminal proceeding or trial that sought the subject Brady, Giglio, and civil litigation materials. Therefore, the "reasonable probability" standard is appropriate here as opposed to the less stringent "reasonable possibility" standard. See Giuca, 33 N.Y.3d 462, 473-474.
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 confidence." People v. Ulett, 33 N.Y.3d 512, 129 N.E.3d 909, 105 N.Y.S.3d 371 (2019). 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 convict." Id. at 520. 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." Id.
Prior to analyzing the third prong of the Brady rule concerning "materiality," it is of significance to highlight the state of the law at the time the Defendant's trial commenced on November 10, 2016. On June 28, 2016, approximately four months prior to the commencement of Defendant's trial, the Court of Appeals decided the landmark case People v. Smith, 27 N.Y.3d 652, 58 N.E.3d 53, 36 N.Y.S.3d 861 (2016).
In Smith, the Court of Appeals provides a comprehensive treatise regarding a Defendant's constitutional right to confrontation and cross-examination of witnesses, standing for the commonsense proposition that "law enforcement witnesses should be treated in the same manner as any other prosecution witness for purposes of cross-examination." Id. at 659. Further, in Smith the Court of Appeals opined that "civil allegations of misconduct in a federal lawsuit filed against a law enforcement agent were favorable to defendant as impeachment evidence." Id. at 661. The Court of Appeals further opined that" a police witness' prior bad act that similarly has not been proved in a criminal prosecution or other court proceeding also can be proper fodder for cross-examination" and it is "subject to the trial court's discretion, [whether] defendants should be permitted to ask questions based on the specific allegations of the lawsuit if the allegations are relevant to the credibility of the witness." Id. at 661-662.
It is not clear from the record why the Defendant's attorney in the underlying case failed to make specific discovery demands seeking the civil litigation materials concerning Detective Rodriguez' alleged misconduct particularly in light of the Court of Appeals' precedent in Smith.
Here, after a review of the trial record, although the Defendant made various incriminating statements to Ms. White, Officer Gomez, Detective Dietrich, and Lieutenant Mitchel admitting that he killed Ms. Lovelace, none of those statements evinced that the Defendant intentionally caused the death of Ms. Lovelace. Most critically, not one of the aforementioned witnesses were eyewitnesses to the events that led to Ms. Lovelace's death. Thus, their respective testimony alone is not probative as to whether the Defendant intentionally caused the death of Ms. Lovelace.
Furthermore, the People's expert medical witness, Dr. Landi, did not reach an expert conclusion that the Defendant intentionally caused the death of Ms. Lovelace. Similarly, Detective Clontz did not render an expert conclusion that the Defendant intentionally caused the death of Ms. Lovelace. In fact, Detective Clontz conceded during his cross-examination that it was possible that the shooting may have been accidental.
Consequently, the most salient and damning evidence produced by the People, which supported their theory that the Defendant intentionally caused the death of Ms. Lovelace was the Defendant's purported confession to Detective Rodriguez.
New York State's jurisprudence has developed a public policy that is inherently circumspect of confession evidence due to its highly incriminating nature. Therefore, New York places a "heavy burden" on the People to "to prove beyond a reasonable doubt that statements of a defendant they intend to rely upon at trial are voluntary." See People v. Jin Cheng Lin, 26 N.Y.3d 701, 47 N.E.3d 718, 27 N.Y.S.3d 439 (2016); see also C.P.L. §60.45. Thus, it has come to be accepted that the requirement for voluntariness of confessions, though heavily influenced by the privilege against self-incrimination, is essentially a matter of due process. See People v. Anderson, 42 N.Y.2d 35, 364 N.E.2d 1318, 396 N.Y.S.2d 625 (1977). It is basic that "ours is an accusatorial and not an inquisitorial system - a system in which the State must establish guilt by evidence independently and freely secured and not by coercion prove its charge against an accused out of his own mouth." Id. at 37.
Both the Court of Appeals and Appellate Division, First Department, in assessing "materiality" have considering several factors: (1) whether the suppressed evidence could be used to impeach a government witness; (2) whether the suppressed evidence could have provided leads for additional admissible evidence; and (3) whether the People's statements during summation compounded the prejudice to the Defendant. See Ulett, 33 N.Y.3d 512, 520-521; see also People v. Flores, 217 A.D.3d 29, 191 N.Y.S.3d 322 (1st Dep't 2023).
The People here through their suppression of the subject evidence ran afoul of the Court of Appeals' precedent in Smith. The People by subterfuge deprived the Defendant of his right to truly cross-examine their principal witness, Detective Rodriguez, as the Defendant could have impeached him with past allegations of exacting and fabricating confessions while investigating other homicides. Moreover, the Defendant's ability to fully develop his defense theory namely that Detective Rodriguez' testimony regarding his confession was untruthful, and that the shooting of Ms. Lovelace was accidental, was unduly curtailed due to the People's suppression of the subject evidence. Most disconcerting, however, were the People's remarks during summation wherein they bolstered Detective Rodriguez' testimony as "credible," "truthful," and "honest" despite knowing that there were serious allegations concerning Detective Rodriguez' mendacious propensities, thereby, compounding the prejudice to the Defendant.
Although this court is cognizant that the People presented a strong case of culpability against the Defendant it cannot be ignored that the compelling character of the People's case rested almost entirely upon the jury's acceptance of Detective Rodriguez' testimony at full value. Therefore, the jury was entitled to hear any evidence that would assist them in a true assessment of Detective Rodriguez' credibility. Hence, this court finds that the above-mentioned factors weigh in favor of a determination that the 16 CCRB complaints and three civil lawsuits regarding Detective Rodriguez' alleged misconduct including claims that Detective Rodriguez contrived confessions on previous occasions were "material" for Brady purposes.
As such, the People were under an ethical and constitutional obligation to disclose the subject Brady, Giglio, and civil litigation materials and their failure to do so here was a dereliction of their duties as truth seekers and administrators of justice. Therefore, the People by their overzealous desire to obtain a conviction denied the Defendant a fair trial.
Accordingly, this court holds that if the suppressed evidence was disclosed to the Defendant there exist a reasonable probability that it would have caused the jury to question Detective Rodriguez' testimony, thereby, undermining this court's confidence in the outcome of the trial. Id.; s ee also People v. Hunter, 11 N.Y.3d 1, 892 N.E.2d 365, 862 N.Y.S.2d 301 (2008); see also People v. Velez, 118 A.D.2d 116, 504 N.Y.S.2d 404 (1st Dep't 1983); see also People v. Wallert, 98 A.D.2d 47, 469 N.Y.S.2d 722 (1st Dep't 1983); see also People v. Cwikla, 46 N.Y.2d 434, 386 N.E.2d 1070, 414 N.Y.S.2d 102 (1979). Thus, the Defendant's C.P.L. §440.10(1)(h) motion must be granted based on the People's Brady violation, and the resulting infringement upon the Defendant's due process rights under the United States and New York State Constitutions.
Accordingly, it is
ORDERED, that Defendant's C.P.L. §440.10(1)(h) motion is granted ; and it is further
This court does not reach the Defendant's remaining ineffective assistance of counsel claims due to the vacatur of the underlying judgment of conviction based on the People's Brady violation.
ORDERED, that the underlying judgment of conviction is vacated; and it is further
ORDERED, that the Defendant shall be afforded a new trial.
Although this court vacated the underlying judgment of conviction it does not dismiss any counts contained in the original indictment.
This constitutes the decision and order of the court.