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

1311
KA 10-00382
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM T. CARVER, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered April 15, 2009. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree and
criminal possession of a weapon in the second degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of assault in the first degree (Penal Law §
120.10 [1]) and two counts of criminal possession of a weapon in the
second degree (§ 265.03 [1] [b]; [3]). On appeal, defendant contends
that the People’s delayed disclosure of a 911 recording constituted a
Brady violation that deprived him of his right to a fair trial. We
agree.

     “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 . . . In New York, where a defendant makes a
specific request for [an item of discovery], 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 259, 263, rearg denied 13 NY3d 766).

     Here, the 911 recording is exculpatory because it includes the
voice of an unidentified person referring to a white male suspect, and
defendant herein is a black male. Although defendant received the 911
recording as part of the Rosario material provided to him on the first
day of trial, he was not “given a meaningful opportunity to use the
exculpatory evidence” (People v Middlebrooks, 300 AD2d 1142, 1143-
                                 -2-                          1311
                                                         KA 10-00382

1144, lv denied 99 NY2d 630; see generally People v Cortijo, 70 NY2d
868, 870; People v Gonzalez, 89 AD3d 1443, 1444, lv denied 19 NY3d
973, reconsideration denied 20 NY3d 932). The trial was brief,
commencing on a Thursday and concluding the following Monday. Defense
counsel had no reason to believe that the recording contained
exculpatory material because the prosecutor did not inform defense
counsel that it did. Furthermore, defense counsel had difficulty
hearing the contents of the recording. When she eventually discovered
that it contained Brady material, she alerted County Court on the
final day of trial and requested an adjournment to subpoena witnesses,
and the court denied her request. Thus, due to the circumstances of
the recording’s disclosure and the court’s denial of the request for
an adjournment, defense counsel was unable to introduce the recording
in evidence and was otherwise denied a meaningful opportunity to use
it, violating defendant’s constitutional right to a fair trial (see
generally Cortijo, 70 NY2d at 870).

     The 911 recording was material inasmuch as it would have allowed
defendant to pursue the theory that the shooter was a white male,
thereby creating reasonable doubt that defendant, a black male, was
the shooter. Thus, there is “a ‘reasonable possibility’ that [the 911
recording specifically requested by defendant] would have changed the
result of the proceedings” (Fuentes, 12 NY3d at 363).

     In view of our determination, we do not address defendant’s
remaining contentions.




Entered:   February 7, 2014                     Frances E. Cafarell
                                                Clerk of the Court
