People v. Ulett
33 NY3d 512
Decided on June 26, 2019
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Issue:
Government’s Withholding of Material Evidence: A Brady Violation?
Whether the Government committed a Brady violation when it denied the existence of—and failed to disclose—material video evidence that contradicted the testimony of several eyewitnesses at the scene of a shooting in defendant Derrick Ulett’s trial.
Holding:
Government Violated Brady Standard When it Withheld Material, Impeaching Evidence
The Court held that Government’s failure to disclose the material video evidence raises a reasonable probability that its disclosure would have produced a different result at trial. Accordingly, the Court reversed the Appellate Division’s order under CPL 440.10 and vacated defendant Ulett’s judgment.
“failure to disclose the material video evidence raises a reasonable probability that its disclosure would have produced a different result at trail“
Facts:
Defendant Derrick Ulett was convicted of murder for shooting a man outside an apartment building in Brooklyn. Several witnesses placed Ulett at the scene and two identified him as the shooter, though their respective accounts of the events were inconsistent. A key witness, a childhood friend of both the victim and the defendant, said that he and the victim were outside an apartment building when defendant came around the corner and began arguing with the victim until Ulett pulled out a gun and shot him. This witness testified that he was alone with the victim before and immediately after the shooting. To corroborate the testimony, the People introduced surveillance video from defendant’s apartment building that showed an individual who appeared to be the defendant leave the building minutes before the shooting and return shortly after.
Referencing testimony that the building where the crime occurred had surveillance cameras in the lobby, defense counsel emphasized that no video from those cameras had been introduced: “Where is that video surveillance? Wouldn’t you think…that if there was video camera surveillance…that would be very important, that possibly could show what it was that took place; don’t you think it would have shown who actually shot the victim? We don’t have that video.” The prosecutor responded: “…isn’t it common sense that you would have seen that video if there had been a video?”
In fact, there was video surveillance from the lobby where the events took place, and the prosecutor had reviewed it before trial. Years after the verdict, pursuant to a Freedom of Information Law request, the District Attorney’s office sent defense counsel a copy. The camera recorded what appear to be images of the key witness, the victim, and a third individual interacting out front shortly before the shooting. Another individual, who appears to be a delivery person, is seen securing a bicycle outside just as the victim is seen falling to the ground. Yet another individual enters the frame and hovers over the prostrate victim.
After receiving the video, defendant moved to vacate his conviction pursuant to CPL 440.10, arguing that the video evidence was both material and favorable to the defense and therefore the People’s failure to disclose it violated their obligations under Brady v Maryland (373 US 83, 87 [1963]). Defendant argued that the prosecutor’s statement to the jury that no video existed compounded the Brady violation and deprived the defendant of his right to a fair trial. In response, the People conceded that the prosecutor had seen the video prior to trial but argued that it was immaterial due to its poor, “washed out” quality that rendered it useless to the defense. The prosecutor put the video in a box for “irrelevant” evidence and “forgot about it.”
At the hearing for the postconviction motion, defendant’s counsel argued that she would have used the video 1) to impeach the key witness’s testimony; 2) to support a defense that a third party was the shooter; and 3) to identify other potential witnesses. The court denied the defendant’s motion, concluding that there was no reasonable probability that disclosure of the video would have changed the result of the proceeding, nor was the prosecutor’s misstatement regarding the existence of the video so egregious as to warrant reversal. The Appellate Division affirmed.
Analysis:
Establishing a Brady Violation
To establish a Brady violation warranting a new trial, “a defendant must show 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” (People v Hayes, 17 NY3d, 46, 50 [2011]). The People challenge only the satisfaction of the third prong of the Bradytest, whether the suppressed evidence was material.
Materiality Test
In New York, where the defense “did not specifically request the information, the test of materiality is whether ‘there is a reasonable probability that had it been disclosed to the defense, the result would be different’” (People v Garrett, 23 NY3d 878, 891 [2014]. The defendant need only show that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict” (Kyles, 514 US at 435). This standard requires the Court to evaluate the quality of the People’s proof against the suppressed evidence, a process described as “legally simple but factually complex” (Turner v US, 582 US, 137 S. Ct. 1885, 1893 [2017]). The Court held that the factual analysis is made less complex in this case, however, as the video “would have changed the tenor of the trial, putting the People’s case in such a different light as to undermine the verdict.”
Here, the People withheld a video of the crime scene that captured events surrounding the murder and relied principally on witness testimony as there was no forensic evidence linking defendant to the murder. This video evidence could have been used to impeach the eyewitnesses, as the tape clearly contradicted the key witness’s statement that he was alone with the victim before and after the shooting. Moreover, the video would have provided leads for additional admissible evidence and avenues for alternative theories for the defense. At a minimum, the presence of unidentified witnesses who were only feet away when the shots were fired could have been used by defense to argue that police failed to conduct a thorough investigation. (see Kyles, 514 US at 445-447). Furthermore, the prosecutor’s statements that denied the existence of the video “compounded the prejudice to defendant’ (People v Cwikla, 46 NY2d 434, 442 [1979]).
The Court explained that the video would have become the focal point of the defendant’s trial: it would have set the scene of the murder, identified other potential witnesses, served to impeach eyewitness testimony, and provided a basis for an argument that other suspects might have been involved in the shooting. Instead of playing that role, it was withheld and the jury was told no video existed. The aggregate effects of this suppression undermined the confidence in the verdict and therefore Ulett is entitled to a new trial. The order of the Appellate Division was reversed, defendant’s motion to vacate judgement of conviction and sentence granted under CPL 440.10 was granted.