The People v. Darrin McGhee

State of New York                                             MEMORANDUM
Court of Appeals                                         This memorandum is uncorrected and subject to
                                                       revision before publication in the New York Reports.




 No. 42 SSM 1
 The People &c.,
         Appellant,
      v.
 Darrin McGhee,
         Respondent.




 Submitted by Alexander Michaels, for appellant.
 Submitted by Ben A. Schatz, for respondent.




 MEMORANDUM:

       The order of the Appellate Division should be reversed and the case remitted to that

 Court for further proceedings in accordance with this memorandum.
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       The only issue properly before us on this appeal is whether the Appellate Division

correctly determined that a witness statement that was disclosed by the People after

defendant’s trial was material for purposes of defendant’s Brady claim (see Brady v

Maryland, 373 US 83, 87 [1963]). “To make out a successful Brady claim, ‘a defendant

must show that (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 Garrett,

23 NY3d 878, 885 [2014], quoting People v Fuentes, 12 NY3d 259, 263 [2009]). Where,

as here, the defendant made a specific request for the evidence in question, “[w]e must

examine the trial record, evaluat[e] the withheld evidence in the context of the entire record,

and determine in light of that examination whether there is a reasonable possibility that the

result of the trial would have been different if the evidence had been disclosed” (People v

Giuca, 33 NY3d 462, 476 [2019] [internal quotation marks omitted]; see Turner v United

States, 582 US ___, ___, 137 S Ct 1885, 1893 [2017]; People v Ulett, 33 NY3d 512, 520

[2019]; People v Vilardi, 76 NY2d 67, 77 [1990]).

       Our examination of the trial record and evaluation of the withheld evidence reveals

there is no reasonable possibility that the People’s failure to disclose the witness statement

at issue undermined the fairness of defendant’s trial or impacted the verdict (see Giuca, 33

NY3d at 476). The undisclosed witness’s description of the shooter and his flight path did

not differ in any material respect from that of the eyewitness who identified defendant in

court as the perpetrator. Moreover, the jury’s verdict was supported by considerable other

evidence, including the testimony of a cooperating witness who planned the crime with

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defendant, provided a weapon and cellphone for defendant’s use, observed defendant

approach and leave the site of the shooting at the time it occurred, and described the manner

in which the weapon was destroyed after the shooting; testimony by the spouse of the

cooperating witness confirming defendant’s involvement; the testimony of additional

witnesses who described the perpetrator’s clothing and his movements following the

shooting; telephone records; and surveillance videos showing defendant’s proximity,

clothing, and behavior immediately after the crime. Under these circumstances, the

undisclosed witness statement lacked sufficient impeachment value to cast any doubt on

the fairness of defendant’s trial (compare People v Rong He, 34 NY3d 956, 959 [2019]).

Furthermore, considering the totality of the evidence, there is no reasonable possibility that

the statement supported an alternative theory of defense, nor has defendant demonstrated

any likelihood that the statement would have led to additional admissible evidence

(compare id.; Ulett, 33 NY3d at 521; cf. Turner, 582 US at ___, 137 S Ct at 1887).

Accordingly, defendant has failed to show that “‘prejudice arose because the suppressed

evidence was material’” (Garrett, 23 NY3d at 885, quoting Fuentes, 12 NY3d at 263).



On review of submissions pursuant to section 500.11 of the Rules, order reversed and
case remitted to the Appellate Division, First Department, for further proceedings in
accordance with the memorandum herein. Chief Judge DiFiore and Judges Rivera, Stein,
Fahey, Garcia and Wilson concur.



Decided March 25, 2021




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