State of New York                                            MEMORANDUM
Court of Appeals                                        This memorandum is uncorrected and subject to
                                                      revision before publication in the New York Reports.




 No. 75
 The People &c.,
         Respondent,
      v.
 Rong He,
         Appellant.




 Paul Skip Laisure, for appellant.
 Seth M. Lieberman, for respondent.




 MEMORANDUM:

       The order of the Appellate Division should be reversed and a new trial ordered.

       In Brady v Maryland, the United States Supreme Court held that “the suppression

 by the prosecution of evidence favorable to an accused upon request violates due process
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where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution” (373 US 83, 87 [1963]). We have since explained that

“[t]he People, in their role as truth-seekers in criminal trials, have a ‘broad obligation to

disclose exculpatory evidence,’ but a mere breach of this duty does not offend the

defendant’s due process rights unless all the ‘components of a true Brady violation’ are

established” (People v Garrett, 23 NY3d 878, 884-885 [2014], quoting Strickler v Greene,

527 US 263, 281 [1999]). A successful Brady claim thus rests on a showing 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 Giuca, 33 NY3d 462, 473 [2019] [citation

omitted]).

       Here, the People failed to fulfill their “broad obligation” of disclosure under Brady

by failing to provide defendant with meaningful access to favorable witnesses. The owner

of the nightclub where the crime occurred told the police that he saw two people approach

one of the victims and strike him with a beer bottle, and even identified someone other than

defendant as one of those assailants. Another witness arguably corroborated this

description when he called 911. According to a sprint report, the caller claimed that two

men “stated that they were going to come back with a gun when leaving location.” These

accounts, if true, would have directly contradicted the People’s theory of the case, and

therefore access to the witnesses who made them was clearly favorable to the defense (see

People v Garrett, 23 NY3d 878, 886 [2014]).


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       The People objected to defendant’s pre-trial request for the direct disclosure of the

witnesses’ contact information, and instead offered to provide the witnesses with defense

counsel’s information. Yet this approach would not have provided defendant with adequate

means for defense counsel to investigate those witnesses’ statements. Furthermore, at the

time of the request, the People did not bring forth any evidence that defendant presented a

risk to the requested witnesses. Consequently, there was no apparent reason at that time for

implementing protective measures or otherwise insulating the contact information from

disclosure in the face of defendant’s clear “right . . . to discover a potentially material

witness” (People v Andre W., 44 NY2d 179, 186 [1978]; see also CPL 240.50 [1] [allowing

the issuance of a protective order upon a showing of “good cause,” including a “substantial

risk of physical harm” or “intimidation”]). Accordingly, under the circumstances of this

case, the People’s refusal to disclose the contact information, or to provide any means for

defense counsel to contact the witnesses other than through the prosecution itself, is

tantamount to suppression of the requested information (see United States v Rodriguez,

496 F3d 221, 226 [2d Cir 2007] [explaining that “Brady information must be disclosed . .

. in a manner that gives the defendant a reasonable opportunity either to use the evidence

in the trial or to use the information to obtain evidence for use in that trial”]).

       The first two prongs of Brady being satisfied, our inquiry thus turns to whether the

suppressed information was material. “In New York, the test of materiality where . . . the

defendant has made a specific request for the evidence in question is whether there is a

‘reasonable possibility’ that the verdict would have been different if the evidence had been


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disclosed” (People v McCray, 23 NY3d 193, 198 [2014], quoting People v Vilardi, 76

NY2d 67, 77 [1990] [emphasis added]). As noted, both witnesses’ statements, if true,

would have directly contradicted the People’s theory of the case that defendant was the

sole perpetrator. Although the People presented other evidence of defendant’s guilt, the

only witness who identified defendant at trial initially told the police that he did not see the

perpetrator’s face. Considering that the nightclub owner provided the police with the name

of another possible assailant, and based on the other evidence presented at trial, it is clear

that access at least to him could have allowed defendant to develop additional facts, which

in turn could have aided him in establishing additional or alternative theories to support his

defense. Given the substance of the nightclub owner’s statements and the nature of the

People’s case, we cannot say—under our less demanding standard—that there was no

“reasonable possibility” that the defense’s investigation of the witnesses would not have

affected the outcome of defendant’s trial (McCray, 23 NY3d at 198; see also Andre W., 44

NY2d at 186-188).

       Whether the causal connection between defendant’s illegal arrest and his statements

was sufficiently attenuated presents a mixed question of law and fact. Here, Supreme

Court’s determination of attenuation has record support, and is therefore beyond our

powers of review (see People v King, 61 NY2d 969, 971 [1984]).




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*    *    *     *    *     *    *    *    *     *    *    *     *    *     *    *    *

Order reversed and a new trial ordered, in a memorandum. Chief Judge DiFiore and Judges
Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.



Decided October 17, 2019




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