By a motion pursuant to CPL 440.10 (1) (g) and (h), dated June 20, 2009, the defendant (Malik) moves to vacate the May 30, 2008 judgment of conviction of Burglary in the First Degree on the grounds that the People failed to furnish Rosario and Brady material in violation of the defendant's rights under the Federal and State Constitutions and New York State law and that this material constitutes newly discovered evidence entitling the defendant to a new trial. By a letter dated August 29, 2009, the defendant supplemented this motion with transcripts of a Molineaux-Ventimiglia hearing held on July 7, 2009 and July 10, 2009 with regard to co-defendant Sada Hussain (Sada) concerning the People's application to introduce certain uncharged crimes on the People's direct case in Sada's re-trial. The supplemental papers contended that this hearing testimony demonstrated the complainant's "bias and lack of general credibility — the core issues in this case." (This Court had previously set aside the verdict convicting Sada, who is Malik's son, because Sada's and Malik's trial attorney had a conflict of interest in simultaneously representing both defendants at their joint trial with two co-defendants which affected the conduct of Sada's defense. People v. Sada Hussain, 20 Misc 3d 1108 [A] [Sup Ct Kings County 2008].)

The People oppose this motion in papers dated September 3, 2009. [*2]

The defendant and his three co-defendants were convicted after trial of Burglary in the First Degree based on their entering the complainant's apartment and beating him. For purposes of this decision, familiarity with the prior proceedings will be assumed.

Malik's Contentions

The defendant Malik contends that a police complaint report filed by the complaining witness, Rana Hussain (Rana), at the 62nd Pct. at 10:50 am on August 16, 2006, four days after the defendant and his three co-defendants had been arrested in this case, alleging that the defendant and his three co-defendants between 9:00 am and 9:20 am "did call him and threatened his life, telling him that they would kill him if he doesn't tell them information about his niece [sic]" should have been disclosed prior to trial by the People and that the failure to do so should result in now vacating the judgment.

Malik became aware of this complaint report only after it was disclosed by the People to Sada's attorney prior to a hearing ordered pursuant to the People's application to introduce evidence of certain uncharged crimes at Sada's pending retrial. Although the People did not seek to introduce evidence of these telephone calls at Sada's retrial, according to the police report, these alleged threatening telephone calls sought the same information from Rana that was allegedly sought to be obtained by prior similar threats to Rana by the four defendants both before and during the crime charged, namely the whereabouts of the two missing teenage daughters of co-defendants Javed Khalid (Javed) and Shafique Mohammad (Shafique) whom the four defendants believed had run away with Rana's nephew.

Malik in his motion contends that Rana's allegation concerning the August 16th telephone threats appears incredible, because the four defendants had been arrested only four days before these telephone calls for charges involving attempts to obtain this same information. Orders of Protection had been issued to all four of the defendants. Nevertheless, despite the recent arrest and the recently issued Orders of Protection, Rana's August 16th complaint alleged that all four participated in making these telephone calls within an approximate twenty-minute period. The People in their Response deny having had any knowledge of these alleged August 16th telephone calls prior to trial and claim not to have obtained the police complaint report until January 20, 2009 (See People's Response at 3 n.1), meaning that Rana, both when he was interviewed in preparation for his Grand Jury testimony a few days after August 16th and when he was subsequently interviewed in preparation for trial, never told the District Attorney's Office about these threatening telephone calls even though the telephone calls would have been in violation of the Orders of Protection that Rana had recently been given and even though Rana later testified that these telephone calls had made him angry and afraid (Hearing Testimony of July 7, 2009 at 101).

This was not the only alleged incident reported to the police that Rana did not reveal to the prosecution prior to the trial. During the trial, Rana revealed to the trial prosecutor that there had been an attack on him on June 30, 2006, six weeks before the crimes charged, by [*3]several men, not including Malik, in an effort to persuade Rana to disclose the whereabouts of the two missing daughters. A police report had been filed in that case. Even when this June 30th incident was disclosed by Rana to the People during trial, Rana did not, according to the People's Response, mention the post- arrest threats allegedly made and reported to the police on August 16th.

Malik now contends that this August 16th police report was both Rosario and Brady material "because it was a recorded prior statement by Rana Hussain that could potentially have been used to further impeach his credibility - the sole issue in the case" (Defendant's motion at 6).

At trial, Malik's attorney chose to forgo interposing the alibi defense that he had mentioned in his opening statement to the jury, because, as he later testified at a hearing held on Malik's motion to set aside the verdict, he and co-counsel at the trial all believed that Rana's testimony about the attack on him was incredible. It was undisputed in the prior motion papers in this case, as well as at the hearing, that before the defendants at trial rested their respective cases, the Trial Judge had expressed an off-the-record opinion to all counsel to the effect that Rana's testimony was not credible. Rana's lack of credibility, according to Malik's trial attorney's testimony at this hearing was an important factor in his strategic decision not to present this alibi.

At this hearing, the purported alibi testimony that was not offered at the trial was presented to this Court in furtherance of Malik's argument that Malik's trial counsel was constitutionally ineffective for not presenting it. Although this alibi, which was based on Malik's family members' testimony that he and Sada were home at the time of the crimes charged, was found by this Court not to be so persuasive that it would justify vacating Malik's conviction on the ground that trial counsel's decision not to present it constituted ineffective assistance of counsel, the Court noted that there was a "possibility that this alibi testimony could have created a reasonable doubt" had it been presented at the trial. (See Court's April 14, 2009 Decision and Order at 14 denying Malik's motion to vacate the judgment.)

Malik further contends that the August 16th police report would have been helpful to the defense, because Malik, had he known of the allegation, could have demonstrated the falsity of the August 16th report as to him based on documentary evidence. According to documents submitted on this motion, Malik was at the "front desk" of a Social Security Administration office on Staten Island from 9:20 am to 9:25am., thereby making it unlikely (although not impossible in this age of cell phones) for him to have participated with his three co-defendants in a coordinated campaign of telephone harassment of Rana from 9:00 am to 9:20 am. Thus, Malik contends, the report of the August 16th incident would have provided Malik with an opportunity at trial to show that this report was false thereby supporting the argument that Rana had also misidentified Malik as a participant in the crimes charged.

Furthermore, independent evidence from the Social Security Administration that [*4]tended to show the falsity of the August 16th report as to Malik would have made Malik's "family alibi" evidence appear even more credible and may very well have resulted in a defense decision by Malik's trial counsel to present the alibi as well as evidence of Malik's non-participation in the June 30th attack (assuming Malik's trial counsel could have made such a decision free from any conflict with Sada's interests, because Sada was not at the Social Security Office on August 16th, and Sada, unlike Malik, allegedly did participate in the June 30th attack, although Rana did not name Sada as a participant according to the June 30th police report).

The final point made by Malik is made in counsel's letter of August 29, 2009 which incorporates the transcript of Rana's testimony of July 7, 2009 when Rana was called as a People's witness in the Molineaux-Ventimiglia hearing involving Sada. On cross-examination, Rana was unable to recall basic details about the August 16th telephone calls, including whether he received them on his cell phone, his home phone, or both, any details about what was said, the order in which the four defendants called him, how many phone calls he received in this twenty-minute time period, or explain his not telling the District Attorney's Office about them even though the calls made him angry and fearful (Hearing Testimony of July 7, 2009 at 99 - 104).

In addition to his inability to recall details of the alleged August 16th telephone calls, Rana testified, contrary to his accusation in the police report, that he did not remember whether Malik made any of these telephone calls (Hearing Testimony of July 7, 2009 at 104):

Q.Sir, isn't it a fact that you never received any phone call from

Azad Malik on the morning of August 16th, 2006 between the hours

of nine a.m. and 9:20 a.m.?

A.I don't remember. I'm trying. I'm trying. I don't remember.

Malik now contends that this hearing testimony in its totality is newly discovered evidence that Rana falsely accused Malik of the crimes charged.

The People's Contentions

The People argue that the August 16th report is not Rosario material, because the report did not "relate to the subject matter" of Rana's direct testimony which concerned crimes committed four days before.

Further, despite the specific claims made in Malik's motion as outlined above (See Defendant's Motion at 8, "Impact of the Non-Disclosure"), the People contend that "even if the document did constitute Rosario material, the defendant does not and cannot explain how he was prejudiced by the non-disclosure, as he is required to in order to obtain relief"(People's Response at 6). The People contend that the August 16th report constitutes evidence of further similar crimes by the defendants thereby corroborating Rana's allegations [*5]rather than casting a doubt on his credibility.

As to Malik's Brady claim, the People likewise contend that a report of another similar crime by the defendants is not exculpatory evidence. For the report to constitute exculpatory evidence, one would have to view the report as possibly being false, and there is nothing in the report that would give rise to that inference. In addition, the People argue that the defendant's motion does not conclusively establish that the defendant could not have called Rana from the Social Security Office. Therefore, even if the report should have been turned over prior to trial as Rosario or Brady material, the defendant has not shown that the failure to turn over the report requires vacating the judgment, because the People contend, there was overwhelming evidence of the defendant's guilt.

The People have not filed a response to the defendant's supplemental papers incorporating Rana's hearing testimony into this motion.

Discussion

At the heart of Malik's Rosario and Brady arguments is that the "Social Security Office" alibi shows that Rana's August 16th report of Malik's making threatening telephone calls was false and that, had this report been disclosed prior to trial, there is both a "reasonable possibility" (the standard for reviewing Rosario violations, as per CPL 240.75) as well as a "reasonable probability" (the higher standard for reviewing Brady violations for failure to disclose material impeaching a witness's credibility that was not specifically requested, as per United States v. Agurs, 427 US 97, 112-113 [1976]; People v. Baxley, 84 NY2d 208, 214 [1994]; People v. Vilardi, 76 NY2d 67 [1990]) that the result of the trial would have been more favorable to Malik.

The People argue that the August 16th report was not Rosario material required to be disclosed prior to trial pursuant to CPL 240.45 (1) (a), because it did not "relate to the subject matter" of Rana's testimony on direct examination, but, rather, to an unrelated incident. For example, the following cases have held that the respective undisclosed witness statements were not Rosario material because these statements were not sufficiently related to the witness's direct testimony: People v. Muhammed, 63 AD3d 617 (1st Dept. 2009)(police officer's report of defendant's medical treatment); People v. Hunter, 16 AD3d 187 (1st Dept. 2005)("drug buy" forms of undercover officer's drug purchases made on the same day from other drug sellers); People v. Hill, 266 AD2d 929 (4th Dept. 1999)(police report of witness's inability to identify photographs of other alleged perpetrators); People v. Coker, 134 AD2d 507 (2nd Dept. 1987)(transcript of witness's Grand Jury immunity waiver), lv granted 71 NY2d 894 (1988), appeal dismissed due to defendant's death 73 NY2d 819 (1988).

However, Rana's statement about the alleged August 16th threats concerned the same four defendants repeating their efforts to threaten and intimidate Rana to reveal the same information allegedly sought from him during the crimes charged. Thus, the August 16th incident was not only "related to the subject matter" of the People's case, it was, in essence, arguably part of a continuing "common scheme or plan" to elicit this information from Rana. [*6]The police report of the August 16th incident was, therefore, Rosario material as to Malik. See People v. Perez, 65 NY2d 154 (1985), in which a Kings County murder conviction was reversed, because the prosecution did not disclose Rosario material consisting of a recorded statement of a prosecution witness to the homicide in which the witness discussed accepting a bribe from the defendant's family. Even though the defendant in Perez did not participate in the recorded bribe discussion with the witness and the bribe discussion was not raised on the People's direct case, the bribe discussion related to the credibility of the witness's direct testimony and, therefore,the recorded statement of the witness was held to be Rosario material.

Although the August 16th report was undisclosed Rosario material (which would have been obtained by the People prior to trial if Rana had told the Assistant District Attorney about the August 16th threats when Rana testified in the Grand Jury shortly after those threats), Malik is not entitled to relief on this ground unless it can also be shown that had this material been disclosed to the defense, there is a reasonable possibility that the verdict would have been more favorable to Malik. If this police report could not be shown to be false, the People would be correct in arguing that the report would not be at all helpful to Malik. If the defense had been given the police report prior to trial, it would have been a long-shot gamble for the defense to introduce evidence of the August 16th threats and police report of them by questioning Rana and then attempt to establish that the "Social Security Office" alibi proved that the report was false, particularly because Malik could have made the telephone threats while at the Social Security Office. Malik's trial counsel would have had no way of predicting that Rana, if asked about the August 16th threats at the trial, would have had a total inability to recall the details of the incident and ultimately admit, as he did at the hearing, that he could not remember Malik making any of the alleged threatening telephone calls.

If disclosure of the August 16th report would have triggered a decision by Malik's trial counsel to both introduce the August 16th report and the "Social Security Office"alibi and the credible "family alibi" for the time of the crime and evidence that Malik did not participate in the June 30th attack prior to the crime, the odds would have significantly tipped in Malik's favor to create the required reasonable possibility that the verdict would have been more favorable to Malik. Reasonable speculation as to how timely disclosure would have changed a defendant's trial strategy is permissible. See People v. Vilardi, 76 NY2d 67 (1990)(Kings County arson conviction reversed for failure to disclose exculpatory report specifically requested by the defense that was introduced in a prior trial of co-defendants). "It is the reasonable possibility that the undisclosed evidence might have led to a trial strategy that resulted in a different outcome (as appears to have happened in [the co-defendants'] trial) that requires reversal." Villardi at 78 (emphasis supplied). Nevertheless, the question of whether the disclosure of the August 16th report as Rosario material would have created a reasonable possibility of Malik's trial counsel choosing to use it as well as the "family alibi" and the June 30th incident need not be decided, because Rana's post-trial hearing testimony changes the picture significantly. [*7]

Rana's testimony at the hearing constitutes compelling evidence that even if the entire August 16th report was not fabricated by Rana, then at least that report was intentionally false as to Malik. CPL 440.10 (1) (g), cited by Malik as a basis for this motion but not otherwise discussed by the parties in their papers, provides that a judgment may be vacated upon the ground that "new evidence has been discovered ... after the 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; .. ." Rana's testimony at the July 7, 2009 hearing meets this test, the burden of proof of which is on the defendant. CPL 440.30 (6).

In People v. Lackey, 48 AD3d 982 (3rd Dept. 2008), lv. denied, 10 NY3d 936 (2008), the victim, following the defendant's conviction of sexual abuse, made a false police report of a sexual assault against another individual. This newly discovered evidence was found sufficient to vacate the defendant's conviction, because it met the requirements of CPL 440.10 (1) (g): "1. It must be such as will probably change the result if a new trial is granted; 2. It must have been discovered since the trial; 3. It must be such as could have not been discovered before the trial by the exercise of due diligence; 4. It must be material to the issue; 5. It must not be cumulative to the former issue; and, 6. It must not be merely impeaching or contradicting the former evidence." Lackey at 983 (citations omitted); People v. Tankleff, 49 AD3d 160, 178 (2nd Dept. 2007).

With regard to whether the false report merely impeached the victim's general credibility which would, therefore, not justify ordering a new trial, the Court in Lackey stated, at 984, in language reflecting a striking resemblance to the facts of this case:

Use of this false complaint would not merely impeach the

victim, but might well have altered the focus of the entire case

and changed the defense theory to a claim that the victim harmed

herself [citations omitted]. Unlike a recantation or a deliberate

false complaint, a subsequent false complaint made while subject

to delusions or hallucinations does not question the victim's

veracity, but rather whether her complaint was based in reality.

Such a defense, though normally unthinkable, would be reasonable

with this new evidence, considering the lack of witnesses and

scientific evidence tying the defendant or any other person to the crime.

There is no specific evidence that Rana's August 16th complaint was the result of delusions or hallucinations. (Note, however, that at the conclusion of Rana's hearing testimony in which he evaded directly answering numerous questions, this Court commented that Rana "either was very clever or mentally impaired," Hearing Minutes of July 10, 2009, at 151.) Nonetheless, the evidence of the false report in this case is even more compelling justification for a new trial than the false report in Lackey, because the purportedly false [*8]report in this case was made against the same person who was convicted in this case, thus demonstrating evidence of Rana's bias against Malik.

The issue of Rana's possible bias against Malik was not raised at the trial. Therefore, this evidence of a false report against Malik is not cumulative to an issue previously raised at the trial. Evidence of Rana's specific bias against Malik is significantly different from evidence impeaching a witness's general credibility and may be proved with collateral evidence. People v. Coleman, 170 AD2d 756 (3rd Dept. 1991), lv. denied, 77 NY2d 993 (1991); Prince, Richardson On Evidence, � 6-415 at 420 (Farrell 11th ed.).

Even though Rana was not convicted of filing a false report as was the complaining witness in Lackey, Rana's admission at the hearing that he did not know whether Malik participated in the August 16th telephone calls, combined with his inability to recall any specifics of that incident and his failure to tell the District Attorney's Office of these purportedly anger and fear inducing threats made in violation of recently issued Orders of Protection, is virtually equivalent to the probative value of a conviction for falsely accusing Malik. (Indeed, if these August 16th threats were ever made, then why no further threats were made remains a mystery. If the defendants had the "lack of respect for the law and ...willingness to ignore it" as argued by the People's Response at 8, which would allow all four of them to continue to make threats to Rana after their arrests, it would seem that such threats would continue after August 16th given the fact that these additional threats did not result in any response by law enforcement agencies.)

With the availability of this newly discovered evidence of Rana's bias against Malik and his apparently (if not also admittedly) false August 16th accusation against him, it would no longer be a long-shot gamble for the defense to introduce the August 16th report and prove it was false as to Malik. Indeed, if Rana has admitted that he does not know whether Malik made these telephone calls, the possibility that Malik used a cell phone to make them from the Social Security Office would be irrelevant. Based on Rana's general lack of credibility as a witness, as noted by the Trial Judge, before whom Rana did not use an interpreter, and this Court, before whom Rana did use an interpreter, combined with the lack of any independent evidence connecting Malik to the crime (note, the conviction in Lackey was vacated even though the defendant in that case had made a written confession whereas there are no admissions in this case), the newly discovered evidence of Rana's apparently knowingly false allegation that Malik participated in making telephone threats against Rana when Malik apparently was at the Staten Island Social Security Office, creates the required probability, when "evaluated against the backdrop of the trial evidence" (People v. Tankleff at 181) that such newly discovered evidence would have resulted in a verdict more favorable to Malik (even in the absence of the credible "family alibi" and the undisputed evidence that Malik did not participate in the June 30th attack).

Accordingly, Malik's motion to vacate the judgment of conviction is granted and a new trial as to Malik is ordered. [*9]

SO ORDERED

Joel M. Goldberg

JUDGE