PEOPLE v. COLON (2008)

Order, Supreme Court, New York County (Michael A. Corriero, J.), entered October 18, 2005, which denied defendants' CPL 440.10 motions to vacate judgments of the same court (Clifford A. Scott, J.), rendered October 5, 1993, convicting defendants, after a jury trial, of murder in the second degree and related crimes, and imposing sentence, unanimously affirmed.

 The trial prosecutor failed to disclose notes from her interviews with two witnesses who possessed potentially exculpatory information. The prosecutor also failed to disclose the fact that she assisted in the relocation of a prosecution witness's grandparents.   Insofar as the relocation constituted an additional benefit to the witness, the prosecutor improperly failed to correct the witness's testimony that, other than a guilty plea to disorderly conduct, he had not been promised any other benefit, and, in her summation, the prosecutor misstated the benefits the witness received.   Each of these acts or omissions was improper (see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 [1972];  Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963];  People v. Novoa, 70 N.Y.2d 490, 498, 522 N.Y.S.2d 504, 517 N.E.2d 219 [1987] ).

 Nevertheless, while we conclude the reasonable possibility standard applies (see People v. Vilardi, 76 N.Y.2d 67, 77, 556 N.Y.S.2d 518, 555 N.E.2d 915 [1990] ), we find no reasonable possibility that the undisclosed information, the incorrect testimony and the prosecutor's comments during summation affected the verdict.   The exculpatory documents contained layers of hearsay, not apparently admissible under any hearsay exceptions (see People v. Burns, 6 N.Y.3d 793, 794, 811 N.Y.S.2d 297, 844 N.E.2d 751 [2006];  People v. Alvarez, 44 A.D.3d 562, 564, 845 N.Y.S.2d 230 [2007], lv. denied 9 N.Y.3d 1030, 852 N.Y.S.2d 16, 881 N.E.2d 1203 [2008] ), and there is no basis other than speculation upon which to conclude that, if disclosed, they might have led to admissible exculpatory evidence.   There is no evidence that the witnesses, or the sources of their statements, would have been willing or able to testify at trial.   As for the relocation of the witness's grandparents, its impeachment value would have been cumulative because the jury's awareness that the witness was receiving a favorable plea agreement in exchange for his testimony “was far more crucial in assessing his credibility” (People v. Sibadan, 240 A.D.2d 30, 35, 671 N.Y.S.2d 1 [1998], lv. denied 92 N.Y.2d 861, 677 N.Y.S.2d 91, 699 N.E.2d 451 [1998] ). Moreover, there was other evidence against defendants, including the testimony of another witness who identified them as the perpetrators of the crimes.

Except as indicated, we find no other violations of the People's obligations to disclose information or correct inaccurate testimony, and we reject defendants' arguments to the contrary.   In the alternative, we find no reasonable possibility that any such violations affected the outcome of the case.