2 No. 90
The People &c.,
Respondent,
v.
Brian Bond,
Appellant.
_________________________________________________________________
2000 NY Int. 87
July 6, 2000
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Joel B. Rudin, for appellant.
Michael Gore, for respondent.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division should be reversed, and a new
trial ordered.
Defendant was convicted of murder in the second degree and related
charges for the November 1, 1991 shooting death of Samuel Benguche in
the courtyard of the Brownsville Houses in Brooklyn. In January 1992,
defendant made an omnibus motion requesting disclosure of prior
inconsistent statements or changed testimony of the People's witnesses
and for other relief. Prior to trial in November 1994, the People,
contending that defendant personally caused Benguche's death,
disclaimed any reliance upon an acting in concert theory. Although a
second bystander was shot, the trial court precluded any reference to
the second victim.
The People's case included the testimony of Leonora Moore and Ricardo
Williams who saw defendant and Jabar Washington point similar looking
guns toward Benguche and heard multiple shots but did not see the
actual shooting. Both Leonora Moore and Ricardo Williams identified a
number of people who were at the crime scene; Carmen Green was not
among them (defendant and one of his witnesses would later testify
that Carmen Green was not present during the shooting).
On the eighth day of trial, the prosecution requested a continuance to
locate additional witnesses. When the trial resumed, the prosecution
SNIPPETS:
The People &c., Respondent, v. Brian Bond, Appellant.
This memorandum is uncorrected and subject to revision before publication in the New York
Defendant was convicted of murder in the second degree and related charges for the November
defendant made an omnibus motion requesting disclosure of prior inconsistent statements or
Prior to trial in November 1994, the People, contending that defendant personally caused
The People's case included the testimony of Leonora Moore and Ricardo Williams who saw
Both Leonora Moore and Ricardo Williams identified a number of people who were at the crime
When the trial resumed, the prosecution produced Carmen Green, who had been arrested on a
She added, critically, that when the detectives had questioned her niece, Leonora Moore, at
defense counsel contended that the evidence was inconclusive as to who had fired the fatal
Pointing out that neither Leonora Moore nor Ricardo Williams had seen the actual shooting,
The defense attacked Green as an admitted crack addict and questioned why she would wait
After two full days of deliberation, the jury convicted defendant of depraved indifference
Almost a year later, defendant brought a CPL 440 motion seeking to vacate the conviction due
Supreme Court denied defendant's motion in part but granted a hearing to determine whether
The trial court recognized that Green's initial statement to the police that she "did not see
We now reverse and order a new trial.
While Green's testimony may support a conclusion that defendant acted intentionally, as
Green's testimony was crucial to the People's theory that it was defendant alone who shot and
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.
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