People v. Colon

Joint amicus curiae brief of the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers.

Brief filed: 09/04/2009


People v. Colon

New York Court of Appeals; Case No. 162, 163

Prior Decision

Case below 55 A.D.3d 444 (1st Dept. 2008.


The decision of the Appellate Division, First Department should be reversed. Due process requires prosecutors to disclose favorable information – not just evidence – in time for defense counsel to investigate and use it at trial. These opportunities are precluded when the prosecutor withholds the information. Requiring defendant to establish the information’s admissibility for the first time years after conviction is an often impossible task. When information emerges long after trial, courts should assume accuracy and that timely disclosure would have led to admissible or otherwise helpful evidence, and then apply the Vilardi materiality test.

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Marc Fernich and Maurice Sercarz of Sercarz & Riopelle LLP in New York, NY and Richard D. Willstatter, Vice Chair of NACDL’s Amicus Curiae Committee and Amicus Curiae Committee Chair for the New York State Association of Criminal Defense Lawyers of White Plains and New York, NY.