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

297
KA 12-02135
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRIAN T. SMITH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JON P. GETZ OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT SHOEMAKER 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 (Frank P. Geraci, Jr., J.), entered October
12, 2012. The order denied the motion of defendant pursuant to CPL
article 440.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order denying, without a
hearing, his CPL article 440 motion to vacate the 2007 judgment
convicting him following a jury trial of manslaughter in the first
degree (Penal Law § 125.20 [1]) and criminal possession of a weapon in
the second degree (§ 265.03 [former (2)]) in connection with the
shooting death of a man in Rochester (People v Smith, 93 AD3d 1345, lv
denied 19 NY3d 967). Defendant contends that County Court erred in
denying his motion because the People violated their Brady obligations
by failing to disclose the status of a prosecution witness as a paid
informant. We reject that contention.

     It is well established that “[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 that “[i]mpeachment evidence
falls within the ambit of a prosecutor’s Brady obligation” (People v
Fuentes, 12 NY3d 259, 263, rearg denied 13 NY3d 766). To make out a
successful Brady claim, “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
                                 -2-                           297
                                                         KA 12-02135

established provided there exists a ‘reasonable possibility’ that it
would have changed the result of the proceedings” (id.; see People v
Garrett, 23 NY3d 878, 885, rearg denied 25 NY3d 1215).

     Here, there is no dispute that defendant established the first
and second elements of the Fuentes test inasmuch as the People concede
that evidence of the witness’s status as a paid informant is favorable
to defendant, and that such evidence was suppressed by the
prosecution. With respect to the third element, even assuming,
arguendo, that defendant made specific requests for information
encompassing the witness’s status as a paid informant in unrelated
cases as well as any compensation that she received in exchange for
evidence implicating defendant in the present case, we conclude that,
“although [such] information . . . may have provided the defense with
additional impeachment material, it cannot be said that there is a
reasonable possibility that the result at trial would have been
different had the information been disclosed” (People v Phillips, 55
AD3d 1145, 1149, lv denied 11 NY3d 899; see People v Sibadan, 240 AD2d
30, 35-36, lv denied 92 NY2d 861). Indeed, the verdict did not turn
solely or predominantly on the witness’s testimony inasmuch as other
evidence established defendant’s responsibility for the shooting (see
People v Johnson, 107 AD3d 1161, 1165-1166, lv denied 21 NY3d 1075;
cf. People v Gayden [appeal No. 2], 111 AD3d 1388, 1389-1390). Even
assuming, arguendo, that the witness’s testimony was important, we
note that her credibility was strongly impeached on far more critical
issues, including her ongoing relationship with the only other suspect
who reasonably could have been implicated in the shooting (see
Phillips, 55 AD3d at 1149; Sibadan, 240 AD2d at 35).




Entered:   April 29, 2016                      Frances E. Cafarell
                                               Clerk of the Court
