AD3: Decisions for May 10, 2007

Failure to turn over evidence of cooperation agreement and an informant's partial recantation of trial testimony does not require a new trial

People v Tucker, 2007 NY Slip Op 04000 [available here]

Mr. Tucker was convicted of murder in 1983 based in part on an informant's testimony. At trial, the informant denied he was testifying pursuant to a cooperation agreement with the prosecutor. In 2005, Mr. Tucker asked the trial court for a new trial, on the basis of newly discovered evidence and certain Rosario, Brady and Giglio violations that came to light only after trial.

Defendant's "newly discovered evidence" argument was based on a written statement obtained from the informant indicating that he had lied at trial and that he did, in fact, testify with the understanding that the prosecutor would offer him a reduced sentence on a pending charge. (Tucker, 2007 NY Slip Op 04000.) The Third Department agreed with the trial court that a new trial was not required based on this evidence alone, primarily because whatever promise was made to the informant was not kept by the prosecutor. "Although this record contains some evidence suggesting that a promise of no jail time was made for a then-pending burglary charge if he testified against defendant, [the informant] was sentenced to one year in jail well in advance of defendant's trial and made no mention of this guaranty during his testimony." (Id. at __.) In any event, any error was harmless given the other evidence of defendant's guilt. (Id. at __.)

The Rosario, Brady and Giglio violations were related, and all concerned documents tending to demonstrate the existence of a cooperation agreement. The most relevant was a letter the informant wrote to a judge, in which he "claim[ed] that, despite promised leniency, he was sentenced to a year in jail." (Id. at __.) Once again, no harm, no foul, says the Third Department. Evidence that a cooperation agreement existed could not have changed the verdict because, according to the Court, "the record demonstrates both that [the informant] did not receive the benefit of the cooperation agreement in exchange for his testimony and his trial attorney had been informed by the prosecution of the possible existence of cooperation agreements." (Id. at __.)

To the extent the facts below demonstrate that the cooperation agreement was breached by the People before Mr. Tucker's trial, and the informant understood that the People could not deliver on their "no jail time" promise, I supposed I can understand the Third Department's decision here. But it seems like the informant's letter would at least suggest that, whatever the actual reality of the situation, the informant thought the agreement was still in place at the time of trial testimony, and that he was upset when, in his view, the People did not hold up their end of the bargain by reducing his sentence. The fact that the informant was sentenced prior to giving his testimony at Tucker's trial and therefore the People would not be able to give the informant what he was promised for his testimony--i.e. no jail time--is not really dispositive. If the informant thought that the prosecutor was still going to somehow make good on the "no jail time" promise, then the cooperation agreement would still undermine his credibility as a witness, and it would be difficult to dismiss the failure to turn over evidence of the agreement as harmless error.


Security officers and sign-in sheet at building entrance, marked office door sufficient to establish area of burglary was not open to the public

People v Carter, 2007 NY Slip Op 03999 [available here]

Mr. Carter was caught going through an office worker's desk and bag; he fled, was caught, and charged with burglary. (Carter, 2007 NY Slip Op 03999.) On appeal, Carter argued that the office building was open to the public and lacked "conspicuous markers which indicate the private areas", and therefore he could not have entered or remained unlawfully (as required for a burglary conviction). (Id. at __.) Not so much, says the Third Department; the building had security officers and a sign-in sheet in the lobby, and the office where the burglary happened was clearly marked as an "CSEA Office." (Id. at __.) "This evidence, viewed in the light most favorable to the People, establishes that defendant entered and remained unlawfully in that part of the premises not open to the public." (Id. at __.)