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

1095
KA 11-01802
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAHEEN M. GAYDEN, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (LAWRENCE L. KASPEREK
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER 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 Monroe County Court (Vincent M. Dinolfo, J.), entered August 1,
2011. The order denied the motion of defendant to vacate the judgment
of conviction pursuant to CPL 440.10.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a jury trial of murder in the second degree
(Penal Law § 125.25 [1]). In appeal No. 2, defendant appeals from an
order denying his motion seeking to vacate the judgment of conviction
pursuant to CPL 440.10. Defendant contends with respect to each
appeal that, in failing to disclose the status of an essential
prosecution witness as a paid informant, the People violated their
obligations under Brady v Maryland (373 US 83). We address that
contention in the context of defendant’s appeal from the order, as
opposed to the appeal from the judgment, and we agree with defendant
that it has merit. We therefore dismiss the appeal from the judgment
in appeal No. 1 as academic, and we thus do not address the
contentions raised in that appeal.

     We note at the outset that the following quote from People v
Fuentes (12 NY3d 259, 263, rearg denied 13 NY3d 766) is instructive:
“[t]he Due Process Clauses of the Federal and State Constitutions both
guarantee a criminal defendant the right to discover favorable
evidence in the People’s possession material to guilt or punishment .
. . [, and i]mpeachment evidence falls within the ambit of a
prosecutor’s Brady obligation . . . To establish a Brady violation, a
                                 -2-                          1095
                                                         KA 11-01802

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 a document, the
materiality element is established provided there exists a ‘reasonable
possibility’ that it would have changed the result of the proceedings”
(see People v Hayes, 17 NY3d 46, 50, cert denied ___ US ___, 132 S Ct
844).

     Here, there is no dispute that defendant satisfied the first
element of the Fuentes test inasmuch as the People do not dispute that
the prosecution witness at issue was a paid informant and do not
contend that evidence of the status of that witness is not favorable
to defendant. The People’s contention that County Court erred in
determining that defendant satisfied the second element of the
Fuentes test is beyond the scope of our review under CPL 470.15 (1)
(see People v Concepcion, 17 NY3d 192, 196). We note in any event
that “[t]he mandate of Brady extends beyond any particular
prosecutor’s actual knowledge” (People v Wright, 86 NY2d 591, 598,
citing Giglio v United States, 405 US 150), and “ ‘the individual
prosecutor has a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case, including the
police’ ” (id., quoting Kyles v Whitley, 514 US 419, 437; see People v
Santorelli, 95 NY2d 412, 421).

     We further conclude that the court should have granted
defendant’s CPL 440.10 motion insofar as it sought vacatur of the
judgment of conviction on the basis of the Brady issue. Here,
defendant made a specific request for Brady material including
agreements between the People and their witnesses, disclosure of
whether any information was provided by an informant, and the
substance of that informant’s information. We conclude that “there
exists a ‘reasonable possibility’ that [such material] would have
changed the result of the proceedings” (Fuentes, 12 NY3d at 263; see
People v Harris, 35 AD3d 1197, 1197).




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
