by Dale Chappell

The New York Court of Appeals overturned a murder conviction on postconviction review, finding that the State’s failure to provide surveillance video of the crime coupled with telling the jury that no video of the crime exists during closing argument undermine confidence in the verdict, and thus, the defendant is entitled to a new trial.

Derrick Ulett was arrested in 2009 for the shooting death of a victim outside of a Brooklyn apartment building in 2008. The State’s key witness said that he was alone with the victim at the time of the shooting, when Ulett showed up and shot the guy. Two other State witnesses gave conflicting testimonies, one saying nobody was with the victim at the time, and the other saying he saw two people with the victim before the shooting.

But there was a problem with this key witness. It wasn’t until 10 months after the shooting that he came forward with his story, saying he wanted to make a deal to take care of some outstanding robbery and drug charges. Prosecutors cut him a deal and let him plead to reduced charges. But when asked at Ulett’s trial what he got in return for his testimony, he denied that he got anything.

After pointing out the different versions of the witnesses’ stories, defense counsel then addressed that the building had surveillance cameras, yet there was no video of the shooting, according to the State. “Where is that video surveillance?” she asked the jury. She said the video “would be very important” and told jurors, “We don’t have that video.”

The prosecutor confirmed defense counsel’s statements, telling the jury, “Isn’t it common sense that you would have seen that video if there had been a video?”

But there wasa video. Prosecutors withheld it from Ulett’s lawyers. Years later, defense counsel received a copy of the video through a Freedom of Information Law request. The video showed not only other witnesses just feet from the victim when he was shot, including a delivery guy, but possibly another shooter.

Ulett then filed a postconviction motion under CPL § 440.10, arguing that the undisclosed video was material to his defense and thus deprived him of a fair trial. After a hearing, the trial court denied his motion. The court concluded that the video did not support any of the defenses Ulett’s lawyer said she would have used had she known about the video and that it would have been “fruitless” to attempt to locate the delivery guy for his testimony now. The court also said that the prosecutor’s statements about the video not existing was not so egregious as to warrant a new trial.

Most importantly for Ulett, the court concluded that even though the video could have been used to impeach the State’s witnesses, it would not have changed the outcome of the trial. Ulett appealed, and the Appellate Division affirmed the dismissal of his motion, concluding that any impeachment value of the video would have been minimal and that the prosecutor’s cover-up of the video was “not so flagrant or pervasive as to deprive the defendant of a fair trial.” The Court of Appeals granted leave to hear Ulett’s case.

The U.S. Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that the prosecution must turn over information that is favorable to the defense. The Court has subsequently extended Brady to include evidence that could be used to impeach witnesses.

In order to establish a Brady violation, a defendant must show (1) the evidence was favorable to his defense, (2) the evidence was suppressed by the prosecution, and (3) he was prejudiced because the evidence was “material” to his defense. The New York Court of Appeals has defined “material” as “a reasonable probability that had the evidence been disclosed to the defense, the result would have been different.” People v. Garrett, 18 N.E.3d 722 (N.Y. 2014).

The different outcome analysis, however, is not whether there would have been a different verdict, but whether the defendant received a fair trial, i.e., “understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419 (1995). The defendant does not have to show that there isn’t enough to convict in light of the undisclosed evidence; he only needs to 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.” Id.

In the present case, the Court held that the video “would have changed the tenor of the trial.” First, the video would have impeached the State’s key witness because it “clearly contradicted” his testimony at trial. Second, the video would have provided defense counsel with more defense options, since it showed other people were involved in the events surrounding the shooting.

“It requires no frame-by-frame review to grasp that the video would have become the focal point of defendant’s trial,” the Court said. “It would have set the scene for 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.”

The Court also found that the prosecutor’s statements to the jury that the video didn’t exist were harmful to Ulett’s defense, in that it made counsel’s comments about there not being a video seem “as a desperate attempt to distract the jury,” when the video actually did exist.

Accordingly, the Court found that the State’s failure to turn over the video to Ulett constituted a violation of its Brady obligations and remanded for a new trial. See: People v. Ulett, 129 N.E.3d 909 (N.Y. 2019).

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