6.3 - A. Brady Violation Spillover

• Jurisdiction: New York

A. Brady Violation Spillover

Whether violations of Brady that result in reversals of convictions on certain counts also require reversal of other jointly tried crimes is a question to be resolved on a case-by-case basis. There must be a reasonable possibility that the evidence supporting the tainted counts influenced the guilty verdicts on other counts.¹⁰⁹⁸

[Case Law Gloss on CPL § 240.20(1)(k)]

“In any prosecution . . . alleging a violation of the vehicle and traffic law . . . any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument” is a clause that has its limitations. The manual of operation and directions for use of a breathalyzer is neither evidence nor subject to discovery. But records indicating that this machine was not operating properly are discoverable, as are police rules and regulations, checklists and calibration records.¹⁰⁹⁹

Section 240.30 Discovery; upon demand of prosecutor

1. Except to the extent protected by court order, upon a demand to produce by the prosecutor, a defendant against whom an indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor is pending shall disclose and make available for inspection, photographing, copying or testing, subject to constitutional limitations:

(a) any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test, experiment, or comparisons, made by or at the request or direction of, the defendant, if the defendant intends to introduce such report or document at trial, or if the defendant has filed a notice of intent to proffer psychiatric evidence and such report or document relates thereto, or if such report or document was made by a person, other than defendant, whom defendant intends to call as a witness at trial; and

(b) any photograph, drawing, tape or other electronic recording which the defendant intends to introduce at trial.

2. The defense shall make a diligent good faith effort to make such property available for discovery where it exists but the property is not within its possession, custody or control, provided, that the defendant shall not be required to obtain by subpoena duces tecum demanded material that the prosecutor may thereby obtain.

[Case Law Gloss on CPL §§ 240.20(1), 240.30(1)]

Both CPL §§ 240.20(1) and 240.30(1) use the phrase “upon a demand to produce” such that neither carries the mandatory force of a court order. If a demand is not honored and it is within the scope of statutorily defined permissible discovery, the remedy is either a court order under CPL § 240.40(1) directing that which was demanded be produced, or an order for preclusion, protection, continuance or other appropriate relief under CPL § 240.70(1).¹¹⁰⁰

“Against whom an indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor is pending”—like the language of CPL § 240.20(1)—requires that demand discovery may only be obtained when an accusatory instrument upon which a defendant may be prosecuted is pending.¹¹⁰¹

§ 240.35 Discovery; refusal of demand

Notwithstanding the provisions of §§ 240.20 and 240.30, the prosecutor or the defendant, as the case may be, may refuse to disclose any information which he reasonably believes is not discoverable by a demand to produce, pursuant to § 240.20 or § 240.30 as the case may be, or for which he reasonably believes a protective order would be warranted. Such refusal shall be made in a writing, which shall set forth the grounds of such belief as fully as possible, consistent with the objective of the refusal. The writing shall be served upon the demanding party and a copy shall be filed with the court.

[Case Law Gloss on CPL § 240.35]

A prosecutor or defense attorney “may refuse to disclose any information which he reasonably believes is not discoverable by a demand to produce, pursuant to § 240.20 or § 240.30 as the case may be, or for which he reasonably believes a protective order would be warranted.” The word “information” is used here instead of “property.” No appellate case has been found holding that use of the broader term was intended as an unmoored and standardless invitation for a court to make “information” mean something different from or more than “property” as defined in CPL § 240.10(3).¹¹⁰² “Information” is not defined in article 240, which hinges itself to “tangible property.”

Section 240.40 Discovery; upon court order

1. Upon motion of a defendant against whom an indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor is pending, the court in which such accusatory instrument is pending:

(a) must order discovery as to any material not disclosed upon a demand pursuant to § 240.20, if it finds that the prosecutor’s refusal to disclose such materials is not justified; (b) must, unless it is satisfied that the people have shown good cause why such an order should not be issued, order discovery or any other order authorized by subdivision one of § 240.70 as to any material not disclosed upon demand pursuant to § 240.20 where the prosecutor has failed to serve a timely written refusal pursuant to § 240.35; and (c) may order discovery with respect to any other property, which the people intend to introduce at the trial, upon a showing by the defendant that discovery with respect to such property is material to the preparation of his defense, and that the request is reasonable. Upon granting the motion pursuant to paragraph (c) hereof, the court shall, upon motion of the people showing such to be material to the preparation of their case and that the request is reasonable, condition its order of discovery by further directing discovery by the people of property, of the same kind or character as that authorized to be inspected by the defendant, which he intends to introduce at the trial.

2. Upon motion of the prosecutor, and subject to constitutional limitation, the court in which an indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor is pending: (a) must order discovery as to any property not disclosed upon a demand pursuant to § 240.30, if it finds that the defendant’s refusal to disclose such material is not justified; and (b) may order the defendant to provide non-testimonial evidence. Such order may, among other things, require the defendant to:

(i) Appear in a line-up;

(ii) Speak for identification by a witness or potential witness;

(iii) Be fingerprinted;

(iv) Pose for photographs not involving reenactment of an event;

(v) Permit the taking of samples of blood, hair or other materials from his body in a manner not involving an unreasonable intrusion thereof or a risk of serious physical injury thereto;

(vi) Provide specimens of his handwriting;

(vii) Submit to a reasonable physical or medical inspection of his body. ¹¹⁰³

This subdivision shall not be construed to limit, expand, or otherwise affect the issuance of a similar court order, as may be authorized by law, before the filing of an accusatory instrument consistent with such rights as the defendant may derive from the constitution of this state or of the United States. This section shall not be construed to limit or otherwise affect the administration of a chemical test where otherwise authorized pursuant to section one thousand one hundred ninety-four-a of the vehicle and traffic law.

3. An order pursuant to this section may be denied, limited or conditioned as provided in § 240.50.

[Case Law Gloss on CPL § 240.40(1)]

“Against whom an indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor is pending” emphasizes that criminal discovery only obtains when an accusatorial instrument has been lodged against a defendant upon which he may be prosecuted. A criminal complaint is an accusatory instrument, but it is not one upon which the defendant may be prosecuted.¹¹⁰⁴

[Case Law Gloss on CPL § 240.40(1)(b)]

“Or any other order authorized by subdivision one of § 240.70 as to any material not disclosed upon demand pursuant to § 240.20 where the prosecutor has failed to serve a timely written refusal pursuant to § 240.35” is a clause dealing with discovery by default and sanctions for nondisclosure. “In fashioning an ‘appropriate’ response to the prosecutor’s wrongful failure to preserve [discoverable] evidence . . . the degree of prosecutorial fault surely may be considered, but the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society.”¹¹⁰⁵ A sanction for the People’s return of stolen property to a crime victim, without prior notice to the defense as required by CPL § 450.10, is mandated only when they do not demonstrate an absence of prejudice to the defendant. Even if there is prejudice the choice of sanction is tailored by the sound discretion of the trial judge.¹¹⁰⁶ As should be evident, sanctions are not to be imposed where the evidence has not been gathered by the prosecution and is not in its possession when lost or destroyed by a private citizen not acting as law enforcement’s agent.¹¹⁰⁷ This language essentially captures the broad outline of court-imposed sanctions for discovery violations generally.

[Case Law Gloss on CPL § 240.40(1)(c)]

“May order discovery with respect to any other property, which the people intend to introduce at the trial, upon a showing by the defendant that discovery with respect to such property is...