                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 19, 2015                   105972
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

QUENTIN LEWIS,
                    Appellant.
________________________________


Calendar Date:   January 5, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


     Andrea G. Hirsch, New York City, for appellant.

      Joseph Stanzione, District Attorney, Catskill (Danielle D.
McIntosh of counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal, by permission, from an order of the County Court of
Greene County (Pulver Jr., J.), entered July 16, 2013, which
denied defendant's motion pursuant to CPL article 440 to vacate
the judgment convicting him of the crime of manslaughter in the
first degree, without a hearing.

      Defendant, who was a prison inmate, was charged with murder
in the second degree and manslaughter in the first degree in
connection with an altercation that involved defendant and two
other inmates and which resulted in one of them dying from a stab
                               -2-                105972

wound.1 At the ensuing jury trial, the People called, among
other witnesses, inmates Wilfredo Galarza and Miguel Roman, who
were the only witnesses who testified that they saw defendant
fighting with the victim. The jury acquitted defendant of murder
in the second degree but found him guilty of manslaughter in the
first degree. County Court sentenced him, as a second violent
felony offender, to 25 years in prison. This Court affirmed his
conviction on appeal (300 AD2d 827 [2002], lv denied 99 NY2d 630
[2003]). Defendant moved pursuant to CPL 440.10 to vacate the
judgment of conviction, alleging that the People committed a
Brady violation by failing to disclose that Roman and Galarza
received favorable treatment in exchange for their testimony
against defendant. County Court denied the motion without a
hearing. Defendant, by permission, appeals.

      We reverse, because defendant was entitled to a hearing on
his motion. Due process requires that the People disclose to the
defendant any evidence in their possession that is "material to
guilt or punishment" (People v Fuentes, 12 NY3d 259, 263 [2009];
see Brady v Maryland, 373 US 83, 87 [1963]; People v Steadman, 82
NY2d 1, 7 [1993]). The People must disclose evidence relating to
a witness's credibility, including "the 'existence of an
agreement between the prosecution and a witness, made to induce
the testimony of the witness'" (People v Novoa, 70 NY2d 490, 496
[1987], quoting People v Cwikla, 46 NY2d 434, 441 [1979]; see
People v Johnson, 107 AD3d 1161, 1164-1165 [2013], lv denied 21
NY3d 1075 [2013]). "To establish a Brady violation, a defendant
must show that (1) the evidence is favorable to the defendant
because it is either exculpatory or impeaching in nature; (2) the
evidence was suppressed by the prosecution; and (3) prejudice
arose because the suppressed evidence was material" (People v
Fuentes, 12 NY3d at 263; see People v Serrano, 99 AD3d 1105, 1106
[2012], lv denied 20 NY3d 1014 [2013]). When a specific request
has been made for the evidence that was withheld, "the
materiality element is established provided there exists a
'reasonable possibility' that it would have changed the result of
the proceedings" (People v Fuentes, 12 NY3d at 263, quoting


     1
        The codefendant inmate pleaded guilty to manslaughter in
connection with this incident.
                              -3-                105972

People v Vilardi, 76 NY2d 67, 77 [1990]; see People v Bond, 95
NY2d 840, 843 [2000]).

      At trial, Roman testified that he witnessed defendant and
the codefendant in a confrontation with the victim and that
defendant was making thrusting motions toward the victim. Roman
testified that he was transferred to Clinton Correctional
Facility after speaking to prison officials about defendant's
involvement in this fight. Defense counsel attempted to elicit
that Roman agreed to cooperate with correction officers to obtain
favorable treatment, including a transfer to Clinton Correctional
Facility because that facility allowed conjugal visits and his
current facility did not, but Roman denied wanting a transfer and
that he had been able to see his wife since the transfer.

      In his affidavit submitted in support of defendant's CPL
440.10 motion, however, Roman averred that on the night of the
fight, he was taken to see "the Investigator General." After
Roman denied seeing anything, prison staff threatened him to make
him cooperate in the investigation. Roman specifically alleged
that correction officers had found marihuana in his belongings
and threatened to charge him with drug possession, send him to
solitary confinement and cut off his correspondence privileges
with his wife, who was also an inmate at the time. Roman further
asserted that he was questioned again months later and, when he
refused to testify before the grand jury, he was threatened with
charges of perjury as well as drug possession. He then agreed to
testify before the grand jury and at trial. Defendant also
submitted affidavits from four other inmates who lived in the
dorm where the fight occurred, all averring that they were
subjected to threats or offered promises in exchange for
information regarding this incident. Allegations that Roman
provided coerced testimony are relevant to his credibility as a
witness, and could have been used for impeachment purposes (see
People v Colon, 13 NY3d 343, 349 [2009]). This meets the first
element to establish a Brady violation.

      As to the second element, the People concede that they did
not disclose to defendant prior to trial any threats or promises
concerning Roman. The People have a duty to learn of favorable
evidence in the possession of law enforcement officials, and such
                              -4-                105972

information is imputed to the People for Brady purposes (see
Kyles v Whitely, 514 US 419, 437-438 [1995]; People v Santorelli,
95 NY2d 412, 421 [2000]; People v Seeber, 94 AD3d 1335, 1338
[2012]). Evidence gathered by prison staff, however, generally
is not "under the control or in the possession of the People or
its agents, but was instead in the possession of an
administrative agency that was not performing law enforcement
functions" (People v Smith, 89 AD3d 1148, 1150 [2011], lv denied
19 NY3d 968 [2012]; see People v Kelly, 88 NY2d 248, 252 [1996];
People v Howard, 87 NY2d 940, 941 [1996]). While Roman avers
that correction officers threatened him on the day of the fight,
he also mentioned that "the Investigator General" was present.
It is unclear who this individual is, and whether he or she is
employed by the prison or an outside police agency. When Roman
discussed being threatened prior to the grand jury presentment,
he vaguely identified the sources of those threats as "the
authorities." Similarly, two of the other inmates who submitted
affidavits regarding threats did not clearly identify the
threateners, referring to them by terms such as "questioner[s]."
The other two inmates stated that they were questioned by outside
police or the State Police. In response to defendant's motion,
the People did not submit any proof regarding who questioned
inmates following this incident. Thus, it is unclear whether
Roman was threatened by prison officials whose knowledge would
not be imputed to the People, or by law enforcement officers
affiliated with an outside police agency, such that the People
would be duty-bound to disclose any evidence within the knowledge
of those officers. Due to this factual question, a hearing is
necessary on the second element to establish a Brady violation,
whether the People suppressed the evidence (see CPL 440.30 [4],
[5]).2


    2
        Defendant argues that the People waived the right to a
hearing by not presenting evidence, such that his motion should
be granted outright, without a hearing. The People are deemed to
have impliedly conceded the truthfulness of a defendant's factual
allegations by failing to dispute them (see People v Wright, 86
NY2d 591, 595-596 [1995]). Although the People's failure in that
regard would establish defendant's allegations that Roman was
threatened or offered promises in exchange for his testimony,
                              -5-                105972

      As to the third element of prejudice due to materiality,
inasmuch as a specific request was made here, defendant only
needed to show the existence of a "'reasonable possibility' that
[the undisclosed evidence] would have changed the results of [his
trial]" (People v Fuentes, 12 NY3d at 263). At trial, only two
witnesses identified defendant as having been involved in the
fight that led to the victim's death. Galarza initially
identified defendant, but was then equivocal as to his
identification. On cross-examination, Galarza admitted that his
vision was poor and he was not wearing his glasses at the time of
the fight, he had mental health issues and took psychotropic or
psychiatric medications. His testimony was relatively weak.
Roman's identification of defendant was much stronger, creating a
reasonable possibility that the inability to impeach his
testimony with the undisclosed evidence affected the outcome of
defendant's trial.

      The People argue that any alleged threats are not material
because Roman has not recanted his testimony – meaning that it
has not been shown to be false – and he was already impeached at
trial. We are unpersuaded. It is not necessary for a defendant
to prove that a witness's testimony was false to establish a
Brady violation; the jury has the obligation to assess
credibility, and the People impede the exercise of that
obligation when they fail to disclose evidence that could be used
for impeachment purposes (see People v Novoa, 70 NY2d at 497).
As for the impeachment at trial, Roman was questioned about the
possible benefit of a transfer, but he denied wanting the
transfer or receiving visits from his wife due to the transfer.
Defendant questioned Roman regarding his criminal history and
that he previously informed defense counsel that he did not see
anything on the date in question. Questioning a witness's
credibility based on prior convictions or a prior inconsistent
statement is fundamentally different, however, than "the
opportunity to challenge the credibility of the People's key


defendant did not conclusively establish other of his factual
assertions (i.e., who questioned Roman). Thus, as factual
questions remain, a hearing is necessary despite the People's
failure to dispute defendant's factual allegations.
                              -6-                  105972

witness as a liar" by eliciting a motive for the witness to
fabricate his or her testimony and possibly incriminate someone
falsely (People v Bond, 95 NY2d at 843; compare People v Dawkins,
43 AD3d 705, 705-706 [2007], lv denied 10 NY3d 809 [2008]). As
defendant's sworn submissions tend to substantiate, but do not
conclusively substantiate, each element to establish a Brady
violation, a hearing is required (see CPL 440.30 [5]; compare CPL
440.30 [3], with [4]).

     Egan Jr., Lynch and Clark, JJ., concur.



      ORDERED that the order is reversed, on the law, and matter
remitted to the County Court of Greene County for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
