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Failure to Disclose a Surveillance Video was a Violation of Defendant’s Constitutional Rights- People v Ulett, 2019 NY Slip Op 05060


In this case the Court of Appeals considered whether the defendant in a murder case was entitled to a new trial due to the prosecution failing to disclose potentially exculpatory evidence.

The events that eventually lead to the defendant being arrested began in March 2008. The victim was shot and killed in front of an apartment building. There were several eyewitnesses who either identified the defendant as the shooter or saw the defendant at the scene at the time of the murder. The defendant was eventually arrested and tried.  While several witnesses testified that the defendant was at the scene, on cross examination, the witness statements were not consistent.  In fact, one witnesses testimony contradicted that of another witness named Cream. Cream was also a childhood friend of both the defendant and the victim. Cream was a key witness against the defendant at the trial. However, he fled he scene without talking to the police. He only came forward 10 months later in an effort to make a deal on pending unrelated criminal charges that he was facing. Cream testified that he was standing with the victim when the defendant walked up, argued with the victim, and then shot him. The defendant was convicted of murder.

At the trial the prosecution stated that there was no video of the incident. It turns out that there was indeed a video and the prosecutor had it at the time of the trial. However, the District Attorney’s Office did not turn it over to the defendant until years after the verdict.  The video showed images of those near the victim when he was shot but did not clearly show who shot the victim.

After reviewing the video, the defendant filed a motion to vacate his conviction on the ground that the prosecutor failed to disclose the video evidence which was both material and favorable to the defense.  In doing so, the prosecutor violated obligations under Brady v. Maryland, 373 U.S. 83 (1963). Brady was a landmark United States Supreme Court case that established that in a criminal case the prosecution must turn over to the defense all potentially exculpatory evidence. In response to the defendant’s motion, the prosecutor argued that there was no Brady violation because the quality of the video was so poor that it would not have been useful to the defendant at trial.  At the hearing on the motion the defendant argued that had the video been available he would have used it to impeach Cream’s testimony, to identify other potential shooters, and to identify additional witnesses. The court dismissed the motion, concluding that it was highly speculative that based on the video that defendant would have been able to identify additional witnesses or identify an alternative shooter. The defendant appealed.

Defendant argued that failure to disclose the video was a Brady violation warranting reversal of the conviction.  The prosecutor argued that the suppressed evidence was immaterial. According to the People v Garrett, 23 NY3d 878, 891 (2014), the test for materiality is whether there was a reasonable probability that had it been disclosed to the defense, the result would have been different.

The Court of Appeals concluded that the video would have put the prosecution’s case in a very different light.  The prosecution’s case relied almost solely on witness testimony as there was no DNA evidence linking the defendant to the murder.  The video evidence could have been used to impeach the witnesses.  For example, the video clearly contradicted Cream’s statement that he was alone with the victim shortly before and after the shooting. The video would also have provided leads for additional admissible evidence as it shows people entering and exiting the building, including other potential eyewitnesses. In fact, there was at least one unidentified witness that was only a few feet away.  The defendant could have argued that the police failed to conduct a thorough investigation.

The court concluded that the aggregate effect of the suppression of this evidence undermines confidence in the verdict and therefore defendant was entitled to a new trial.

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