People v Davis

[*1] People v Davis 2010 NY Slip Op 50919(U) [27 Misc 3d 1226(A)] Decided on May 24, 2010 Supreme Court, Bronx County Duffy, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2010
Supreme Court, Bronx County

The People of the State of New York,

against

Alfredo Davis, Defendant.



3610-07



Felicity Lung, Esq.

Assistant District Attorney

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Michael Fraggetta, Esq.

Assistant District Attorney [*12]

Office of Robert T. Johnson, Esq.

198 East 161st Street

Bronx, New York 10451

Mark S. DeMarco, Esq.

2027 Williamsbridge Road

Bronx, New York 10461

Attorney for Defendant


Colleen D. Duffy, J.

Currently pending before this Court is Defendant Alfredo Davis' jury trial on a three count indictment for Murder in the Second Degree (P.L. §125.25(1)), Manslaughter in the First Degree (P.L. §125.20(1)), and Criminal Possession of a Weapon in the Second Degree (P.L. §265.03(1)(b)).

On or about May 13, 2009,[FN1] Defendant filed a motion seeking dismissal of the indictment contending that the police had lost Brady material crucial to Defendant's

defense of the action.[FN2] This lost material had been in a police case file in the 48th Precinct pertaining to a shooting that occurred on January 28, 2006, in a Bronx pool hall, in which Defendant sustained a gunshot wound (hereinafter "the January 2006 shooting"). The NYPD ballistics analysis of the shell casings of the bullets used to shoot and kill Marcus Adams in this instant case yielded a match of those casings to some of the shell casings found in the pool hall after the January 2006 shooting.

Defendant claimed that the NYPD case file in that January 2006 shooting, [*2]containing the police reports, 911 call, SPRINT,[FN3] and witness information, a CD copy of videotape of the shooting (hereinafter "CD"), and still photographs made from the videotape, constitutes Brady material that was never provided to Defendant in this case.

The People filed an opposition to Defendant's motion,[FN4] contending only that Defendant's Brady argument was premature and that it is a matter for the trial court to determine what, if any, sanctions would be appropriate.

In a Decision on Motion, dated December 29, 2009, the Honorable Robert Torres held that the loss of evidence did not form a basis for dismissal and, "in the alternative," referred the matter to the trial court to determine what, if any, sanction would be appropriate.

On April 22, 2010, this matter came before this Court for trial and pre-trial hearings. Defendant again raised the issue of the alleged Brady violation and reiterated his position that the only appropriate sanction was dismissal of the indictment. This Court then ordered a hearing on the issue.

Defendant submitted an Affirmation and a Memorandum of Law to supplement his application to re-argue his motion for dismissal, contending that the destruction or loss of potentially exculpatory Brady evidence has rendered it impossible for Defendant to receive a fair trial and the only appropriate sanction for that loss is dismissal of the indictment.[FN5]

The People submitted a Memorandum of Law in opposition to Defendant's motion for dismissal or to reargue contending that the material was not Brady material at all and that, even if it were, its loss was inadvertent and did not prejudice the Defendant.

On April 26, 2010, this Court held a Brady hearing to determine specifically what, if any, Brady material was not provided to Defendant, and, as to any such material, how it was lost, and what, if any, prejudice inured to Defendant as a result. The Court informed the parties that it would consolidate the Brady hearing with the issue of whether Defendant could argue third-party culpability at trial, insofar as the evidence to be adduced regarding the Brady issue appeared to address that issue as well. On that date, Detective Roberto Rodriguez, Shield Number 984, of the 48th Precinct, and Detective Dwayne Farmer, Shield Number 7758, of the 46th Precinct, testified as to the issues before the Court.

With respect to the Brady issue, upon consideration of the credible testimony [*3]and evidence, and the written submissions by each of the parties, and for the reasons set forth below, this Court finds the People committed a Brady violation with respect to the loss of the CD depicting the January 2006 pool hall shooting; that the loss of that material was inadvertent with no malfeasance on the part of the People but that the material lost could be important to Defendant's defense. Accordingly, although the Court denies Defendant's motion to dismiss the indictment, the Court has fashioned, and sets forth below, a sanction designed to remedy any harm to Defendant as a result of the lost CD.

As set forth more fully in the Findings of Fact, infra, the Court notes that there is no dispute that certain documents and items contained in the police case file for the January 2006 shooting were lost by the police and have not been recovered. According to the credible testimony of Det. Rodriguez, the file contained a CD containing video surveillance of the January 2006 shooting as well as still photographs of some of that video surveillance and reports and police officer notes.

The thornier issue is what, if any, of the contents of the police file in the 48th Precinct constitutes Brady material. Some information that would have been in the contents of the police file was obtained from other sources and provided to Defendant. For example, the People obtained the results of a ballistics report which had matched some of the shell casings taken from the January 2006 shooting scene to those recovered in the August 2006 incident and a copy of that report was provided to Defendant. Moreover, Defendant already had seen some of the material that later had been lost; to wit, at the time of his investigation, Det. Rodriguez showed Defendant at least twostill photographs from the video surveillance. In addition, Defendant had known that Det. Rodriguez had been investigating the January 2006 shooting and had had conversations with Det. Rodriguez in connection with Det. Rodriguez's investigation of that matter.

To the extent that Defendant was a victim-participant of that January 2006 shooting, he was aware of the circumstances of that event and, thus, some documents created in investigating the event would contain information already known to Defendant about the incident. Accordingly, such documents — police notes, interviews of witnesses, etc. — are not Brady material; Defendant could have used information already known to him to prepare his defense in this case. See Section III, infra.

Likewise, Defendant saw photographs that were in the file. However, there is no evidence that Defendant knew of or saw the video footage that was lost. According to the testimony of Det. Rodriguez, the contents of that CD could be exculpatory. The videotape is therefore Brady evidence, the loss of which may be harmful to Defendant at trial. To cure any such harm and to sanction the People for this loss, Defendant may call Det. Rodriguez, the lead detective in the January 2006 shooting, as a witness and question him about the contents of the video and photographs. If Defendant avails himself of such opportunity, the People also may explore the circumstances pertaining to the pool hall shooting and evidence recovered. Defendant may also call Det. Farmer as to his observation and view of Det. Rodriguez's police file.

With respect to the issue of third party culpability, as set forth below, the Court finds that Defendant may argue third-party culpability, in light of Det. Rodriguez's testimony at the hearing and the ballistics evidence linking the shell casing at the pool [*4]hall shooting to the shell casings from the gun used to kill Marcus Adams.

FINDINGS OF FACT

At the hearing, Det. Rodriguez testified that he was the lead detective in the pool hall shooting case in January 2006. Det. Rodriguez testified that he maintained in his case file computer checks on the victim (the Defendant here), and on the pool hall, 911 call information, SPRINT information, vouchers for all evidence vouchered in the case, including the ballistics evidence and the victim's clothing, a CD of selected excerpts of the surveillance tape from the pool hall security camera, and approximately ten still photographs, copied from images in the surveillance tape.

Det. Rodriguez testified that he had viewed the videotape of the pool hall surveillance cameras and that the videotape showed several pictures of the pool hall activity from several different camera angles. Det. Rodriguez testified that during his investigation he learned that Defendant and a group of individuals were playing dice when a fight broke out. According to Det. Rodriguez, the videotape showed that a large group of people (more than 10) were involved in the ensuing fight, and Defendant, along with others, was visibly defending himself with a pool cue stick, using it like a large sword. Det. Rodriguez testified that everyone was hitting each other with sticks. Det. Rodriguez testified that, at one point, Defendant fell a bit, then ran toward the stairs, and slid down the steps, and then he was out of view of the surveillance camera. Det. Rodriguez testified that the surveillance video from another angle showed a light-skinned Hispanic male in his twenties with a "DA"- type hair style, on top of a pool table, shooting a gun in the direction of Defendant. Det. Rodriguez testified that the videotape showed only one shooter, and that there was a clear image of the shooter when he had entered the pool hall visible on the videotape. Det. Rodriguez testified that, after viewing the videotape with the son of the pool hall owner, the son downloaded excerpts of the videotape onto a CD, which Det. Rodriguez retained. The excerpts, Det. Rodriguez testified, were chosen by Det. Rodriguez and included frames of the shooter entering and leaving the pool hall, Defendant Davis entering and leaving, and the fight and subsequent shooting.

Det. Rodriguez did not voucher the CD copy of the surveillance videotape or the still photographs that he had printed from the surveillance tape. At the hearing, Det. Rodriguez could not explain why he had not vouchered those items.

Det. Rodriguez also testified that he had spoken to the victim, Defendant, twice while Defendant was in the hospital and again a few weeks later, on the telephone. Det. Rodriguez testified that, each time, Defendant said that he did not know who shot him and did not know what the fight was over. Det. Rodriguez also testified that Defendant had come into the precinct to retrieve his property and Det. Rodriguez had shown him a still photograph of the shooter whom Defendant said he did not recognize. Det. Rodriguez asked Defendant to look at photographs on the police computer, but Defendant said he would come back at a later date. Det. Rodriguez testified he closed the case as "uncooperative" when Defendant never returned, and failed to return Det. Rodriguez's telephone calls to Defendant's mother's home.

Det. Rodriguez also testified that he showed Det. Farmer, the lead detective in the instant case, two still photographs of the man shooting from the pool table. Det. [*5]Rodriguez testified that these stills showed a flash coming from the gun, indicating it was being fired. Det. Rodriguez testified that he was unable to show Det. Farmer the CD of the surveillance video, as he no longer had the appropriate software on his computer.[FN6]

Det. Rodriguez could not say how the file became lost. He testified that the last time that he can recall seeing the file was after he returned it to the case files cabinet after meeting with Det. Farmer. Det. Rodriguez testified that he found out that the file was lost when he was contacted by the People in connection with this case. Det. Rodriguez testified that he looked for the file where the closed files were kept and that he was unable to locate it. He testified that he searched an entire room of files, with case files dating back ten years, spending a full eight hour shift looking. Later, a police cadet spent additional time looking, as did a now-retired detective. Det. Rodriguez made another attempt another day, and a third attempt at the request of his Sergeant. Det. Rodriguez testified that, to date, they have not found the file.

Det. Farmer testified about the ballistics evidence that linked the two incidents. Det. Farmer testified that a "Brasscatcher" hit was received, which is an indication from a computer program that showed that shell casings from the gun used in the Marcus Adams shooting matched some of the shell casings collected by the Evidence Collection Team that had investigated the January 2006 pool hall shooting in which Defendant was the victim. On learning about this Brasscatcher hit, Det. Farmer testified that he contacted Det. Rodriguez and, on February 26, 2007, met with him. Det. Farmer testified that, at that time, Det Rodriguez showed him two photographs of a male standing behind a pool table and another male who appeared to be running downstairs. Det. Farmer stated that he could not discern the race or ethnicity of the persons in the still photographs and that he saw only two photos. He testified that he did not make copies of the photographs or any other documents in Det. Rodriguez's case file. Det. Farmer testified that, the next day, he had prepared a DD-5 and in that DD-5 wrote, "The photos showed my perp that is wanted for my homicide being shot by another perp."

CONCLUSIONS OF LAW

I.This Court Cannot Hear This Case de Novo,

but Will Treat the Motion as One to Reargue

As an initial matter, the Court notes that it cannot hear Defendant's previous motion for dismissal of the indictment de novo, as Judge Torres has already heard the motion and made a decision. People v. Evans, 94 NY2d 499, 505 (2000)(where the court must make findings of fact and render conclusions of law, decision is binding on successor judge as "law of the case").

However, the Court will treat Defendant's papers as a Motion to Reargue. As an [*6]initial matter, the Court notes that the People do not oppose re-argument; indeed, the People contend, in their initial papers, that Defendant's original motion was premature and that the issue should be reserved to the trial judge. Although a motion to reargue must be made, on notice, to the judge who signed the order, if he or she is for any reason unable to hear it, the motion may be heard by the trial court. See CPLR § 2221. In this case, although Judge Torres signed the Decision and Order on Defendant's Brady motion and normally would be the appropriate judge to hear the motion to reargue, he no longer is sitting in Supreme Court, Criminal Division, and, as such, is not available to hear the motion. C & N Camera & Electronics, Inc. v. Service Mutual Insurance Company, 210 AD2d 132, 133(1st Dep't 1994). As this is the Court before which the matter is pending and to which it shall be tried, this Court is the appropriate court to hear the motion to reargue. C & N Camera, 210 AD2d at 133; Billings v. Berkshire Mutual Insurance Company, 133 AD2d 919, 919-20 (3rd Dep't 1987).

The Court notes that the motion to reargue also is timely filed. The CPLR§ 2221(d)(3) provides that a motion to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." There is no assertion that Defendant had been served with notice of entry of Judge Torres' decision.[FN7] Accordingly, the Court considers the motion timely.

II.The Motion to Reargue is Granted

A motion to reargue is granted if it is "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. . ." CPLR

§2221(d)(2); see also Andrea v. E.I. DuPont de Nemours Co., 289 AD2d 1039, 1040-1041 (4th Dep't 2001), app. denied, 97 NY2d 609 (2002). "Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided." Foley v. Roche, 68 AD2d 558, 567, 418 NYS2d 588 (1st Dep't 1979).

Here, the language of Judge Torres' Decision leaves open the issue of whether any matters of fact or law were overlooked or misapprehended in determining the motion. The Decision states in its entirety:

The Defendant has moved for an order dismissing the indictment

based upon destruction and/or loss of Brady material.

While this Court does not condone apparent destruction and/or

loss of material, same does not form a basis for dismissal.

In the alternative, the issues are respectively referred to the trial

court for appropriate sanction, if any.

The above constitutes the Decision and Order of this Court. [*7]

Indeed, although the Decision appears to refer the matter to the trial court to determine what, if any, sanction is appropriate, it does not articulate a definitive finding that there was, in fact, any Brady material that was lost or destroyed, which is a requisite element in determining the appropriateness of a sanction, if any. People v. Banch, 80 NY2d 610, 620-21 (1992)(reversal of conviction required where trial court failed to hold a hearing to determine the content of the material lost and the circumstances of its disappearance); People v. Haupt, 71 NY2d 929, 930-31 (1988); People v. Kelly, 62 NY2d 516, 520 (1984).

As this Court was unable to determine what, if any, sanction would be appropriate based solely upon the papers in the Court's file, to wit, Defendant's motion, the People's opposition, and Judge Torres' Decision, the Court orally granted Defendant's motion to re-argue and ordered a hearing on the issue in its entirety (which was held on April 26, 2010). Banch, 80 NY2d 610, 620-21.

The Court notes that, at the hearing, Det. Rodriguez testified about the videotape and photographs, and about police filing procedures and efforts to locate the file; Det. Farmer testified about the ballistics match between the gun used in the pool hall shooting against Defendant and the gun used to kill Marcus Adams. These facts were not before Judge Torres. Thus, it is clear that there were matters of fact, relevant to whether a sanction should be imposed, which could not be considered by Judge Torres in his Decision, because such facts were not presented to him.

Accordingly, having granted re-argument of the issue, the Court has considered all of the credible testimony elicited at the hearing as well as all papers submitted by the parties in connection with this issue.

III.The Lost Videotape is Brady Material

The Defendant has a "constitutional right to be informed of exculpatory information known to the State." Brady v. Maryland, 373 U.S. 83, 87-88, 10 L. Ed. 2d 215, 218-19 (1963); People v. Robinson, 133 AD2d 859, 859-60 (2nd Dep't 1987). This right is limited to exculpatory information which is "material." Brady v. Maryland, 373 U.S. at 87-88, 10 L. Ed. 2d at 218-19.

Here, Defendant specifically requested information in the People's possession pertaining to the January 2006 shooting. When information is specifically requested, the test for materiality is whether a "reasonable possibility" exists that its disclosure would alter the trial outcome. U.S. v. Agurs, 427 U.S. 97, 104, 96 S. Ct. 2392, 2398 (1976); People v. Vilardi, 76 NY2d 67, 77 (1990); People v. Davis, 81 NY2d 281, 286 (1993); People v. Scott, 88 NY2d 888, 890-91 (1996).

In this case, identification of the Defendant is a key issue. The lost file, which contained a CD of a crime in which Defendant is a victim and shell casings found at the scene which matched shell casings for the weapon used to kill Marcus Adams, contained Brady material, to wit, the CD, which should have been turned over to Defendant.

Information is not deemed Brady material when the Defendant has knowledge of it (People v. Fein, 18 NY2d 162, 170, 219 NE2d 274, 277 (1966), cert. denied, 385 U.S. [*8]649, reh. denied, 386 U.S. 978 (1967 ); People v. Banks, 130 AD2d 498, 499 (2nd Dep't 1987)), and when Defendant can use that knowledge to prepare his defense. People v. Sebak, 270 AD2d 166, 166 (1st Dep't 2000). Accordingly, police reports, the computer-search information, SPRINT report of the 911 call, and any witness information, is not Brady material since Defendant, as a victim-participant in the incident, either was aware of all of the relevant facts or witnesses, or was privy to such information as part of Det. Rodriguez's investigation of the incident. People v. Tran, 308 AD2d 497, 497 (2nd Dep't 2003)(material not Brady where defendant was aware of the facts set forth in the police reports); People v. Dukes, 156 AD2d 203, 203 (1st Dep't 1989)(not Brady where defendant knew Grand Jury witnesses and was aware of testimony); Sebak, 270 AD2d at 166 (Grand Jury minutes and police reports regarding an unrelated incident between defendant and complainant not Brady material since defendant was aware of the incident and based his defense upon it).

In this case, Defendant himself actually viewed at least one photograph that was in the file that subsequently was lost.

Nonetheless, crucial physical evidence - video footage on a CD - also was lost with the file, and this physical evidence is different than the other items in the police file. The CD depicted actual footage of the pool hall shooting, which may be exculpatory Brady evidence, in that some of the shell casings from that shooting where Defendant was a victim match shell casings from the weapon used to kill Marcus Adams. People v. Saddy, 84 AD2d 175, 179 (2nd Dep't 1981)(tapes of an alleged drug sale were erased, thereby hindering defendant's Agency defense; the court reduced the conviction from criminal sale to possession); People v. Marks, 127 Misc 2d 591, 599-600 (Sup. Ct., New York Co.1985) (inadvertent destruction of audiotape crucial to defense of entrapment required mistrial).

Det. Rodriguez testified that he viewed the videotape of the pool hall shooting and saw only one shooter and one gun involved, and that Defendant was the victim in that case. Subsequent ballistics testing identified some of the shell casings obtained by the Evidence Collection Team at the pool hall crime scene as matching the shell casings of the weapon used to kill Marcus Adams. Defendant's inability to play the videotape footage for the jury in this case, allowing them to evaluate it, decide for themselves what it showed, and what, if anything, it proved, may be harmful to his defense of the case. People v. Saddy, 84 AD2d at 180, 445 NYS2d at 605 (had the jury been able to hear the destroyed tapes, acquittal of certain counts was likely).

IV.The Loss of Evidence was Inadvertent

"In order to safeguard the Defendant's rights under Brady, the prosecutor, as well as law enforcement officials, are under a duty to diligently preserve all materials which may be subject to disclosure." People v. Saddy, 84 AD2d at 178, 445 NYS2d at 604, citing U.S. v. Bryant, 439 F.2d 642 (D.C. Cir. 1971). The burden of establishing that discoverable material has been lost or destroyed and for explaining its disappearance falls on the People. People v. Banch, 80 NY2d at 620-21, 608 NE2d at 1075 (1992). [*9]

In this case, there is no evidence that loss of the case file was anything other than inadvertent. Det. Rodriguez testified that the file was closed because the police were unable to contact the victim, the Defendant here. Det. Rodriguez credibly testified that once the file was closed, normal procedure would have been to place the file in a (basement ) room with all other closed files. Det. Rodriguez testified that he put the file in the correct file drawer and that when he went to retrieve it from where those files had been stored, it was missing.

Based upon the credible testimony of Det. Rodriguez, the People established that the file was indeed lost and that diligent efforts were made to locate and/or replicate the contents of the missing file. Banch, 80 NY2d at 620-21, 608 NE2d at 1075.

The Court notes that Det. Rodriguez failed to voucher the CD. Vouchering such evidence would have helped to ensure that it would be secured until such time as it was needed for trial. Det. Rodriguez gave no reason for this omission, and while the Court imputes no bad faith to this oversight, the general rule where discoverable evidence is lost is that "the People face the imposition of sanctions unless they sustain their heavy burden of establishing that diligent good-faith efforts were made to prevent the loss of such evidence . . ." People v. Haupt, 128 AD2d 172, 174-175, aff'd, 71 NY2d 929, 524 NE2d 129 (1988). Diligent efforts were not made to preserve the videotape evidence here and that failure requires that a sanction be imposed.

V.Sanction is Appropriate but Dismissal is Not Warranted

Under the facts of this case, the Court finds that the severe sanction of dismissal of the indictment is not warranted to remedy the Brady violation here, as a less severe sanction will cure any harm to Defendant. Indeed, "the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence." People v. Kelly, 62 NY2d at 521, 467 NE2d at 501.

Here, the People have established that the loss of the police file was not in bad faith and amounts only to negligence. Moreover, the bulk of the information contained in the lost police file did not constitute Brady material, as Defendant had personal knowledge of the facts and circumstances surrounding the pool hall shooting and the People were able to re-create and provide to Defendant some of the information contained in that file. However, Defendant's inability to play the CD for the jury as part of his defense must be cured. Defendant may elicit testimony from Det. Rodriguez as to the contents of the videotape and may cross-examine Det. Farmer as to his observations of the missing file. It appears that Det. Rodriguez will testify that Defendant was shot by the pool hall shooter, whom he can fully describe, as he saw him clearly on the videotape, and that there was only one person visibly wielding a gun in that incident.

With respect to the contents of the missing CD, the People have not disputed the testimony given by Det. Rodriguez at the hearing, where he testified with excellent recall of specific details as to the contents of the videotape. Det. Rodriguez's account of the contents of the videotape and photographs has an added indicia of reliability [*10]insofar as his testimony might be seen as a statement against interest. Det. Rodriguez's testimony, inasmuch as it is exculpatory for Defendant, is against the police interest in prosecuting this case against Defendant. People v. Maerling, 46 NY2d 289, 295 (1978)(indicia of reliability flows from the fact that a person ordinarily does not reveal facts contrary to his own interest).

Finally, and perhaps most importantly, Det. Rodriguez must be allowed to testify as to the contents of the videotape and the photographs because there is no other way in which the jury would be able to hear this evidence and no other way to remove any prejudice caused to Defendant by the People's loss of this evidence. See People v. Jackson, 168 Misc 2d 182, 190-91 (Sup. Ct., Bronx Co. 1995)(defense permitted to introduce prior exculpatory statements of unavailable witness at trial), aff'd, 264 AD2d 683 (1st Dep't 1999). The overriding purpose of the sanction must be to cure any prejudice to Defendant from the loss of the evidence. Kelly, 62 NY2d at 520, 467 NE2d at 500.

Accordingly, the Court finds that the appropriate sanction to cure any harm to Defendant caused by the loss of the CD is to allow Defendant to call Det. Rodriguez as a witness to testify about the contents of the CD and the missing file. Of course, the People will be permitted to explore the details of the January 2006 shooting if Defendant elects to introduce any such evidence.

VI.Evidence of Third-Party Culpability is Admissible

Turning to the issue of evidence pertaining to third-party culpability, the Court finds that the evidence that another individual committed the crime for which Defendant is being tried is relevant and probative of a fact at issue in the case.

Here, the evidence sought to be introduced includes the ballistics evidence linking the gun used in the pool hall shooting against Defendant and the gun used to kill Marcus Adams, and the testimony of Det. Rodriguez as to his viewing of the videotape and the photographs gleaned from the videotape.

This Court finds that the probative value of that evidence outweighs any prejudicial effect or any jury confusion that may occur. Holmes v. South Carolina, 547 US 319, 326-327 (2006); People v. Schulz, 4 NY3d 521, 528 (2005); People v. Primo, 96 NY2d 351, 355-357 (2001). Here, Defendant's theory that a third person committed the crime is not mere conjecture where ballistics and videotape evidence point to another person, not Defendant, using a gun at a scene where some shell casings match those that were in the weapon that killed Marcus Adams. Primo, 96 NY2d at 357.

Accordingly, the Court finds that this evidence of third-party culpability may be introduced by the Defendant at trial.

VI.Conclusion

For the reasons set forth above, the Court grants Defendant's motion to reargue and finds that the lost police file contained Brady material, to wit, the CD, which should have been turned over to Defendant. Since Defendant was aware of much of this information, as a victim of that prior shooting, and could have used the information to [*11]prepare his defense, as to that portion of the lost file, the materials are not deemed Brady material. Likewise, the photographs which were or could have been viewed by Defendant are not Brady material. The Court finds, however, that the video footage captured on the CD which was lost is Brady evidence, the loss of which may prejudice Defendant at trial.

To cure any prejudice and to sanction the prosecution for this loss, the Court holds that Defendant may call the lead detective in the prior shooting as a witness and question him about the contents of the video and photographs. Defendant may also call Det. Farmer as to his observation and view of Det. Rodriguez's police file. If Defendant introduces such evidence, the People may also make inquiry and call witnesses to the extent to which the pool hall shooting is investigated.

Defendant may also introduce evidence of third-party culpability via questioning of Det. Rodriguez and the ballistics evidence linking the gun at the pool hall shooting to the gun used to kill Marcus Adams.

The following papers also were considered by the Court in deciding the motion: Notice of Motion, filed on or about May 13, 2009, and Affirmation of Mark S. DeMarco, attorney for Defendant, in Support of Motion; Affirmation in Opposition by Felicity Lung, Assistant District Attorney, dated April 16, 2008 [sic], Affirmation of Mark S. DeMarco, and Memorandum of Law, filed April 26, 2010, and People's Memorandum of Law.[FN8]This constitutes the Decision and Order of this Court.

Dated: Bronx, New York

May 24, 2010

E N T E R:

Footnote 1: The Notice of Motion and accompanying Affirmation of Mark S. DeMarco, Esq., attorney for Defendant are not file stamped, but an accompanying Clerk of the Court cover sheet is dated June 1, 2009.

Footnote 2: As part of an omnibus motion made in April 2008, Defendant had sought, inter alia, any evidence, including police reports, photographs, and videotape, that might be considered exculpatory Brady material.

Footnote 3: A Sprint report is a computer-generated log of the contents of the 911 call contained on the original master tape. People v. Cortez , 149 Misc 2d 886, 893, 564 NYS2d 963 (Crim. Ct. Kings Co. 1990).

Footnote 4: The People's Affirmation in Opposition inexplicably is dated April 16, 2008 — over a year prior to the date on Defendant's motion to dismiss, and does not bear a file stamp.

Footnote 5: As set forth in Section 1, infra, Defendant's initial contention that the issue could be argued de novo to this Court is without merit. With respect to re-argument, the Court notes that the People do not oppose re-argument. See People's Affirmation in Opposition (matter appropriately should be before the trial court).

Footnote 6: Det. Rodriguez testified that the pool hall has since closed and its owners' whereabouts are unknown to him.

Footnote 7: Although service of written notice of entry starts the statutory time clock for filing a motion to renew or re-argue (CPLR § 2221(d)(3)), it is not the protocol of the clerk's office in Bronx Supreme Court, Criminal Division, to stamp any decision with a notice of entry. See CPLR 5016 (judgment is entered after being signed and filed by the clerk).

Footnote 8: People's Memorandum of Law was received by the Court on April 23, 2010. However, there is no indication that it was filed with the Clerk's Office.