People v Suh (Kenneth)

[*1] People v Suh (Kenneth) 2010 NY Slip Op 51068(U) [27 Misc 3d 143(A)] Decided on June 14, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 14, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and MOLIA, JJ
. NOS. 2008-294 OR CR 2008-2084 OR CR

The People of the State of New York, Respondent,

against

Kenneth Suh, Appellant.

Appeals from (1) a judgment of the Justice Court of the Town of Woodbury, Orange County (David L. Levinson, J.), rendered January 8, 2009, and (2) by permission, an order of the same court dated November 4, 2008. The judgment convicted defendant, after a nonjury trial, of sexual misconduct and sexual abuse in the third degree. The order denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

ORDERED that the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the judgment and order are reversed, on the law and facts, defendant's motion to vacate the judgment of conviction is granted and the matter is remitted to the Justice Court for a new trial.

The People charged defendant with sexual misconduct (Penal Law § 130.20 [2]) and sexual abuse in the third degree (Penal Law § 130.55), and defendant was convicted of both counts after a nonjury trial. Defendant moved, pursuant to CPL 440.10, to vacate the judgment of conviction, based on the post-trial revelation that despite his pretrial demands for the production of Brady material, the prosecutor had failed to disclose that, two years before the trial, the prosecution's principal witness had been convicted, in the same jurisdiction that prosecuted defendant, upon her guilty pleas, of disorderly conduct, in satisfaction of a petit larceny charge, and of unlawful possession of marihuana. Defendant appeals both from the judgment of conviction and, by permission, from the order denying the motion to vacate the judgment, without a hearing.

With respect to the appeal from the judgment convicting defendant of sexual misconduct (Penal Law § 130.20 [2]) and sexual abuse in the third degree (Penal Law § 130.55), defendant's [*2]claim that the prosecution's principal witness was incredible as a matter of law was not preserved by appropriate objection at trial (CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]; People v Gouvatsos, 45 AD3d 779 [2007]). Upon our own review of the evidence (People v Danielson, 9 NY3d 342 [2007]), we find that the verdict was not against the weight of the evidence (People v Bleakley, 69 NY2d 490, 495 [1987]). We have considered the remaining claims of error and find them to be unpreserved or without merit.

However, on the particular facts and circumstances herein, we find that defendant's rights pursuant to CPL 240.20 (h) (2), which imposes upon the prosecutor the duty to exercise diligence and good faith to determine the existence of Brady material, were violated (People v Santorelli, 95 NY2d 412, 421 [2000]; People v Bryce, 88 NY2d 124, 129 [1996]). The People concede, in effect, that the witness's criminal record was "readily available to the prosecutor" (People v Valentin, 1 AD3d 982, 983 [2003]) and would have been discovered in the exercise of ordinary diligence. We find that the record amounted to Brady material in that the facts underlying the charges and the nature of the ultimate dispositions were matters that the defense could have used to impeach the witness (People v Rivera, 101 AD2d 981, 982 [1984], affd 65 NY2d 661 [1985]; People v Torra, 309 AD2d 1074, 1076 [2003]). Matters of theft have "very material relevance" for a person's capacity for "individual dishonesty" (People v Sandoval, 34 NY2d 371, 377 [1974]; see also People v Lemke, 58 AD3d 1078, 1079 [2009]; People v Strasser, 249 AD2d 781, 783 [1998]). In this sharply contested case, which turned on the weight to be accorded to the testimony of this crucial prosecution witness (People v Phillips, 55 AD3d 1145, 1149 [2008]), whose evidence was "determinative of guilt or innocence" (People v Frantz, 57 AD3d 692, 693 [2008]; see also People v Pressley, 234 AD2d 954 [1996], affd 91 NY2d 825 [1997]; People v Baxley, 84 NY2d 208, 213 [1994]; People v Phillips, 55 AD3d at 1149; People v Valentin, 1 AD3d at 982; People v Torra, 309 AD2d at 1076), we cannot say that the disclosure violation was harmless (see People v Fuentes, 12 NY3d 259 [2009]; People v Arac, 297 AD2d 560 [2002]).

Accordingly, the judgment and order are reversed, defendant's motion to vacate the judgment of conviction is granted, and the matter is remitted to the Justice Court for a new trial.
Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 14, 2010