People v Morales (2012 NY Slip Op 52075(U))

People v Morales

2012 NY Slip Op 52075(U) [37 Misc 3d 1218(A)]

Decided on September 20, 2012

Supreme Court, Kings County

Ozzi, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through November 29, 2012; it will not be published in the printed Official Reports.

Defendant was indicted with a top charge of the attempted murder of his parole officer, which occurred on April 15, 2010. A jury trial in this matter commenced on August 3, 2012. On August 14, 2012, upon defendant's motion, a mistrial was declared on the record without prejudice. Counsel appeared again before the Court on September 10, 2012, upon defense counsel's request to argue his position that the mistrial declaration should have been with prejudice. The Court made its rulings on the record, but it wishes to set forth its reasons and rationale therefore in this memorandum.

On August 8, 2012, well after the People's opening statements, the Assistant District Attorney handed over to defense counsel, for the first time, "three pages of new notes that Mr. Perry had not received before that (he) received this morning" (Trial Trans., p. 538). The new notes were described as handwritten notes of Criminalist Stephanie O'Shea, whom the People later called as a witness. They include items of discussions O'Shea had with Detective Shimicka Meadows, of the New York Police Department Crime Scene Analysis Unit, who had testified previously. Detective Meadows testified that she arrived at the crime scene, documented and photographed potential evidence and gave it to Police Officer Rafael Medrano, who arranged for it to be forwarded to the police lab.

After the ADA's implied concession (TT. pp. 543-544) that a Rosario violation (CPL § 240.45(1)) had occurred, the Court suggested, as a possible remedy, to direct Detective Meadows and/or Officer Medrano to return to the stand and be subjected to further cross-examination upon information surrendered in the newly disclosed notes.

The newly disclosed notes apparently pertain to additional items of vouchered evidence found at the crime scene. They suggest that Detective Meadows may have vouchered these items. Detective Meadows said nothing of vouchering the items in her direct examination; rather, she merely indicated the items were packaged and sent off to labs for testing. She was not asked anything on cross-examination about her vouchering of the items. However, Police Officer Medrano testified that he vouchered the gun and ballistics, but there was no suggestion on cross-examination that someone else vouchered these items, undoubtedly because the notes in question were not yet in defense counsel's possession.

By contrast, the newly disclosed statements prepared by Criminalist O'Shea reveal her receipt of two packages of vouchered items, numbers 215253 and R345740, with a notation that "Items No.1-3� from voucher #215253 were not listed on original voucher R345740 and were found inside the outer packaging but items were repackaged into one PSE #F103634." Another entry in the same disclosed [*2]paperwork indicated that Criminalist O'Shea spoke with "Detective Meadows regarding the extra items found - she informed me that all the items were found in the firearm, and she did not list them on the original voucher due to difficulty with the ECMS System. As per Mary Eng, I will re-voucher the extra items on a new voucher." Again, by way of contrast, Officer Medrano testified that he vouchered the gun and ballistics. (TT, p. 346)

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�Item 1 was a "black rusty magazine"; Item 2 included twelve 9mm cartridges; Item 3 was one shell casing

Any weakness in the chain of custody, of course, was a topic defense counsel could have pursued upon cross-examination, since it went to the weight of such evidence (People v. Smith 196 AD2d 764; People v. Howard, 305 AD2d 869; People v.Crawford 231 AD2d 431). The failure to turn over the statements in question within the time prescribed by CPL 240. 45(1) effectively foreclosed any such examination, especially as to Detective Meadows and Officer Medrano.�

Even if defendant had availed himself of that opportunity, it would not obviated the prejudice which inured to him. "The fairness concept embodied in the Rosario rule cannot be said to have been satisfied when pretrial statements revealing a potential trap for the cross-examiner are furnished to defense counsel only after the trap has sprung." (People v. Lebovits,

94 AD3d 1146, 1149, (2d Dept.), quoting People v. Perez, 65 NY2d 154, 159). Here, as in Lebovits, the untimely full disclosure of the Criminalist's notes precluded the defense from adequately preparing for his opening statement and/or cross examination, and set a trap for the defendant which already sprung at the time the notes were finally furnished. Such prejudice to defendant could not have been obviated by merely recalling the witness concerning the newly disclosed notes as a consequence of the trap (Id., at 1149). Lack of a timely disclosure also effectively precluded the defense from arguing about chain of custody problems in his opening statement, as well. (See also, People v. Mitchell, 14 AD3d 579 (2d Dept.)).

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�At this point the Court notes that although the Assistant District Attorney conceded defense's right to recall Detective Meadows and further suggested her availability for same, (TT. pp. 542-544), she was never actually produced prior to the close of People's case.

The failure of the People to disclose the notes in question also raises potential Brady violations as well (Brady v. Maryland, 373 U.S. 83), since they can be construed as impeaching in nature (People v. Alonzo 91 AD3d 663, 664 (2d Dept.); People v. Frantz, 57 AD3d 692, 693 (2d Dept.)).

Throughout, the Assistant District Attorney contended, in sum and substance, that he was not in possession of the notes in question until just prior to their turnover. Defense counsel made no claim of any intentional suppression. However, the law is well settled that the People have an obligation to turn over discovery regardless of good faith or bad faith, wilfulness or inadvertence (See, e.g. People v. Maldonado, 36 Misc 3d 1224(A)), so long as it was in the possession or [*3]knowledge of the police or law enforcement (see, People v. Wright, 86 NY2d 591, 598)

The failure of the People to turn over the notes heretofore described prior to opening statements, standing alone, warrants a mistrial (People v. Lebovitz, supra, at 1149), a motion for which is addressed to the sound discretion of the Court where "an error or legal defect in the proceedings....is prejudicial to defendant and deprives him of a fair trial" (People v. Toland,

2 AD3d 1053; see also, People v. Maldonado, supra, citing People v. Martinez, 71 NY2d 937, 940; CPL 280.10(1)).

The People offered the testimony of Detective Gerald Rex, an expert in latent print analysis. He analyzed the thumbnail photos of latent fingerprints recovered from a firearm's magazine found at the scene. His opinion was that they were of no value.

Defense counsel indicated from the start that although in receipt of a print of the aforementioned thumbnail photos, he was seeking the original digital photos (or an exact copy thereof), to enable him to enlarge the fingerprint images, into a more useful form. The first thumbnail prints turned over to defense were viewed by the Court, and appeared to be a black and white photocopy of an original thumbnail, in poor quality and poor contrast. Upon defense counsel's complaint about the quality of the thumbnails turned over to him, eventually a color print version of the thumbnails was disclosed. Defense counsel insisted that, upon his experience and common knowledge, in this digital age, a digital photo file must exist, in a form which would permit the creation of a larger, clearer image. Eventually, the People provided another printed copy of the same thumbnails, this time on glossy white paper. These images were introduced into evidence. At this point the Court notes that documentary evidence supports the conclusion that the ADA never sought out the existence of the photos in digital file form. Two letters dated, June 26, 2012 and August 2, 2012, addressed to the NYPD Latent Prints section asked for the "paperwork" generated, and the "hard copy prints", respectively.

It must be remembered that one of the purposes of the discovery statute (CPL 240.20) is to provide defendant with the opportunity to perform his own scientific tests; in this case, upon

In truth, these statements confirm what common sense would dictate, i.e., that original digital photos are more useful for analysis than prints of small, thumbnail photos. The People's response, in effect, that their own experts simply examined the thumbnail prints with a magnifying glass, and that the thumbnail prints in their possession were turned over to defense, is of no moment. The defense was entitled to examine the fingerprints in a meaningful way.

Criminalist O'Shea, testified outside the presence of the jury. She stated that the thumbnail prints come from a photograph, in digital form, on a file in possession of the NYPD. In this case, they were taken with an ordinary digital camera and loaded onto a computer.

They are acquired onto a database and that the New York Police Department has the capability to take the digital image and create a larger version to "blow it up", and/or zoom in for greater detail.They can also be burned onto a CD.

The existence of such digital photographs in the form described by defendant having been established�, it was incumbent upon the People to provide that which was specifically requested; i.e., relevant photographs made or prepared by law enforcement (`CPL 240.20 (1) (d)). Said digital photographs, being in the possession of law enforcement, are deemed to be in possession of the People as well for this purpose (People v. Morgan, 178 Misc 2d 595, 601), and the failure to provide them in a timely fashion prejudiced defendant's ability to have them examined by an expert. It also demonstrates a further need to declare a mistrial.

On September 10, 2012, counsel appeared before the Court one more time, upon defendant's argument that the mistrial heretofore declared should be with prejudice, and that double jeopardy bars retrial. Defense counsel previously moved for a mistrial (TT. p. 539), with out elaboration. He moved again for the same relief after the close of the People's case, this time with prejudice (TT. p. 890).

Defense counsel argued on said date, that once this court indicated that the grant of the motion for a mistrial was without prejudice, an opportunity should have been given to withdraw the motion. He also argued, for the first time, the claimed need for a mistrial with prejudice, based on the prosecutor's "prodding".

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� Any doubts as to their existence were quelled when the digital files containing fingerprint photos were provided to the defense on August 23, 2012 during an appearance before Justice Patricia DiMango.7

Generally, when a defendant requests a mistrial, double jeopardy does not attach. There is but one exception, however, and double jeopardy principles will bar a retrial when the prosecution deliberately provokes a mistrial. (Matter of Davis v. Brown, 87 NY2d 626, 630). Here,

prior to the Court's mistrial ruling, although defense counsel argued several issues, such as Rosario violations, discovery violations, and the like, no argument was made that the prosecution deliberately provoked the mistrial through calculated conduct. It was made "in light of the scientific, the fingerprint, and chain of custody issues" (TT. p.890), and only well after the Court's ruling. This factor distinguishes the matter at bar from the one presented in the Davis case, supra, in which the Court of Appeals specifically limited its holding:

"This case requires us to decide whether a criminal defendant may specifically limit a motion to one for a mistrial with prejudice... one based on the ground that the prosecution engaged in misconduct intended to provoke a mistrial with its attendant retrial bar. We conclude that a defendant should be permitted to so delimit a mistrial motion and be given the opportunity to withdraw it if the total relief requested will not be granted (citation omitted)" (emphasis added).

Having failed to make a timely mistrial motion upon the only recognized exception to the rule permitting retrial after a defendant's application (i.e. prosecutorial provocation), defendant cannot now be heard to claim that he should be given an opportunity to withdraw it. Consequently, the failure to give defense an opportunity to withdraw the motion, upon the circumstances and grounds presented, was within the Court's discretion (see, People v. Cattan, 69 NY2d 547, 555).

Again, where a mistrial is granted on motion of defendant, there is no constitutional bar to a retrial, unless prosecutorial misconduct gave rise to the motion and the circumstances show the conduct was motivated by an intent to provoke the motion (See Oregon v. Kennedy, 456 U.S. 667, People v. Greaves, 196 AD2d 883 (2d Dept.); Pierre -Lewis v. Tomei, 157 AD2d 661 (2d Dept.); People v. Banks, 108 AD2d 1016, People v. Gayle, 193 Misc 2d 556). On the issue of any prosecutorial misconduct, as described by defense counsel during the September 10, 2012 argument, the Court concludes, upon the entire record, that such misconduct, if any, was perpetrated by a prosecutor "bent on securing a conviction, not one seeking to provoke defendant into moving for a mistrial" (Matter of Gorghan v. DeAngelis, 25 AD3d 872, 873, aff'd 7 NY3d 470). Nor can it be said that the case was undoubtedly headed for an acquittal (Matter of Davis v. Brown, supra). Defense counsel repeatedly admitted that his client shot his parole officer and his defense of an extreme emotional disturbance had not yet been introduced in evidence. Movant has failed to meet his burden of demonstrating that the judicial process itself has been impaired. (Matter of Gorghan v. DeAngelis, supra). Consequently, mistrial is an appropriate remedy, and this branch of the motion, to the extent it seeks to bar retrial, must be denied.