        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

637
KA 14-00570
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLARD BAILEY, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


LEONARD & CURLEY, PLLC, ROME (MARK C. CURLEY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Oneida County (Barry M. Donalty, A.J.), dated
January 14, 2014. The order denied the motion of defendant to vacate
a judgment of conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Supreme
Court, Oneida County, for further proceedings in accordance with the
following memorandum: In appeal No. 1, defendant appeals from a
judgment of County Court (Donalty, J.) convicting him upon a jury
verdict of criminal sexual act in the first degree (Penal Law § 130.50
[2]). In appeal No. 2, he appeals, with permission of this Court,
from an order of Supreme Court (Donalty, A.J.) denying his motion to
vacate that judgment pursuant to CPL 440.10 (1) (g). Defendant failed
to preserve for our review his contentions in appeal No. 1, i.e., that
the prosecutors violated their Brady obligation concerning an
agreement they made with a codefendant in return for providing
testimony against defendant, that the court improperly characterized
the codefendant’s testimony and gave incorrect jury instructions
regarding that testimony, that the court impermissibly restricted the
scope of voir dire questioning, and that the court improperly
permitted a sworn juror to remain on the jury despite the juror’s lack
of capacity to decide the issues fairly. We decline to exercise our
power to review those contentions as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     In appeal No. 2, defendant contends that the court erred in
denying his CPL article 440 motion without a hearing. We agree.
Defendant moved to vacate the judgment on two grounds, neither of
which may be decided without a hearing. First, he contended that the
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                                                         KA 14-00570

People violated their Brady obligation because they failed to disclose
that they made a specific plea agreement with the codefendant at the
start of the proceedings, contingent upon the codefendant testifying
against defendant. Defendant contended that the People effectuated
that agreement by, among other things, obtaining an indictment
charging the codefendant with a lower level crime than the class B
violent felony that was lodged against defendant, to avoid the plea
bargaining restrictions in CPL 220.10 (5) (d) (ii), and by agreeing
that the codefendant could withdraw his plea to the lower level felony
and plead guilty to a misdemeanor if he cooperated against defendant.
Defendant submitted evidence in support of his contentions, including
transcripts of the prosecutor’s statements in the codefendant’s case
regarding the agreement, and those transcripts also established that
the prosecutor had discussed the agreement with the victim before it
was implemented.

     In opposition to the motion, the trial assistant prosecutor
denied that the People made any promises to the codefendant, and we
note that the People maintained that position throughout the trial
proceedings, on summation, and in opposition to defendant’s CPL
article 330 and 440 motions. Indeed, in their brief on appeal, the
People contend that “[n]o promises were made to [the codefendant] by
the prosecution.” “A prosecutor’s duty of disclosing exculpatory
material extends to disclosure of evidence impeaching the credibility
of a prosecution witness whose testimony may be determinative of guilt
or innocence” (People v Baxley, 84 NY2d 208, 213, rearg dismissed 86
NY2d 886), and the codefendant’s testimony here clearly demonstrates
that he was such a witness. Therefore, as the Court of Appeals stated
in a similar situation, “[i]t is worth noting . . . that no prosecutor
with knowledge of the negotiations . . . has yet made a full
disclosure to any court” regarding the promises that were made to the
codefendant in exchange for his cooperation against defendant (People
v Steadman, 82 NY2d 1, 6). We conclude that defendant’s contentions
in support of his motion, together with the supporting evidence that
he submitted in conjunction with his motion, raise a question of fact
regarding whether promises were made to the codefendant in return for
his testimony against defendant, beginning before the matter was
presented to the grand jury and continuing throughout the trial and
thereafter, and thus whether defendant may be entitled to a new trial
based on the failure to disclose material that affects the credibility
of a key prosecution witness (see People v Harris, 35 AD3d 1197,
1197). Contrary to the People’s contention, the record does not
permit adequate review of those issues, and we agree with defendant
that the court erred in denying the motion without a hearing on the
ground that “sufficient facts appear on the record with respect to the
ground[s] or issue[s] raised upon the motion to permit adequate review
thereof upon [direct] appeal” (CPL 440.10 [2] [b]).

     The second ground advanced by defendant in support of his CPL
article 440 motion was that a juror lacked the capacity to serve on
the jury, and that the juror had misrepresented his employment status
in response to questioning by the court. Defendant submitted some
evidence establishing that the prospective juror may be
developmentally disabled and that he may have misrepresented his prior
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                                                         KA 14-00570

and current employment, but defendant’s investigator was unable to
obtain more information without judicial subpoenas that the court
declined to provide. Inasmuch as defendant submitted evidence that
called into question “whether this particular juror should have been
entrusted with the responsibilities of fact finding [because the
juror] did not understand the lawyers or the judge” (People v Sanchez,
99 NY2d 622, 623), the court further erred in denying the motion on
the ground that the issue could be decided on direct appeal.

     We therefore reverse the order in appeal No. 2 and remit the
matter to Supreme Court to decide defendant’s motion following a
hearing on the issues raised therein, including the details of any
promises that were made to the codefendant and whether the People
breached their Brady obligation to disclose those promises, and
whether the juror misrepresented his employment and lacked the
capacity to sit on the jury.

     We do not consider the People’s further contentions that the
court should have denied the motion pursuant to CPL 440.30 (4) (b) and
(d). The court did not decide the motion adversely to defendant on
those grounds, and thus we may not affirm the order in appeal No. 2 on
those grounds (see People v Concepcion, 17 NY3d 192, 197-198; People v
LaFontaine, 92 NY2d 470, 473-474, rearg denied 93 NY2d 849).




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
