People v. Howard, 663 N.E.2d 1252 (NY 1996). · Go Syfert
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People v. Howard, 663 N.E.2d 1252 (NY 1996). Cases Citing This Book View Copy Cite
43 citation events (29 in the last 25 years) across 6 distinct courts.
Strongest positive: People v. Roper (nyappdiv, 2024-10-08)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Roper (2×)
N.Y. App. Div. · 2024 · confidence medium
Finally, the surveillance video was not in the People's custody and control when it was destroyed; it was in the custody and control of the Department of Correctional [*2]Services, which is not a law enforcement agency ( see People v Howard , 87 NY2d 940, 941 [1996]).
discussed Cited as authority (rule) People v. McGuire
N.Y. App. Div. · 2021 · confidence medium
The transcript containing the witnesses' testimony, however, was generated and held by the court, an independent entity over which the People have no authority or control such that an obligation to disclose material held by it could arise ( see generally People v Howard , 87 NY2d 940, 941 [1996]; People v Washington , 86 NY2d 189, 192 [1995]; People v Fishman , 72 NY2d 884 , 886 [1988]; People v Frank , 107 AD2d 1057, 1057 [4th Dept 1985]).
discussed Cited as authority (rule) People v. Barzee
N.Y. App. Div. · 2021 · confidence medium
The People were not in possession of such material, and the People are under no obligation to locate and gain possession of material from a prison disciplinary hearing for the purpose of turning the material over to the defense, as such an obligation only arises when such material is in the People's possession ( see People v Howard , 87 NY2d 940, 941 [1996]; People v McPherson , 170 AD3d 1255 , 1257 [2019], lv denied 33 NY3d 1071 [2019]).
discussed Cited as authority (rule) People v. McPherson
N.Y. App. Div. · 2019 · confidence medium
Although the People are not under an obligation to obtain witness statements made during a prison disciplinary hearing ( see People v Howard , 87 NY2d 940, 941 [1996]; People v Lewis , 167 AD3d 158 , 161 [2018]), if such material is in the People's possession, an obligation to disclose arises ( see CPL 240.45 [1] [a]; People v Smith , 89 AD3d 1148, 1150 [2011], lv denied 19 NY3d 968 [2012]; People v Duran , 6 AD3d 809, 811 [2004], lv denied 3 NY3d 639 [2004]).
discussed Cited as authority (rule) People v. Lewis
N.Y. App. Div. · 2015 · confidence medium
Evidence gathered by prison staff, however, generally is not “under the control or in the possession of the People or its agents, but was instead in the possession of an administrative agency that was not performing law enforcement functions” (People v Smith, 89 AD3d 1148, 1150 [2011], lv denied 19 NY3d 968 [2012]; see People v Kelly, 88 NY2d 248, 252 [1996]; People v Howard, 87 NY2d 940, 941 [1996]).
discussed Cited as authority (rule) People v. Smith
N.Y. App. Div. · 2011 · confidence medium
The destruction of the tape did not violate defendant’s rights under Brady v Maryland ( 373 US 83 [1963]) or People v Rosario ( 9 NY2d 286 [1961], cert denied 368 US 866 [1961]), because the videotape was never under the control or in the possession of the People or its agents, but was instead in the possession of an administrative agency that was not performing law enforcement functions (see People v Kelly, 88 NY2d 248, 253 [1996]; People v Howard, 87 NY2d 940, 941 [1996]; People v Figueroa, 53 AD3d 779, 781 [2008], lv denied 11 NY3d 832 [2008]; People v Ross, 282 AD2d 929, 931 [2001], lv d…
cited Cited as authority (rule) People v. Nolasco
N.Y. App. Div. · 2010 · confidence medium
This testimony constituted impermissible bolstering (see People v Howard, 87 NY2d 940, 942 [1996]; People v Trott, 46 AD3d 713, 714 [2007]; People v Eyre, 138 AD2d 397, 398 [1988]).
discussed Cited as authority (rule) People v. Figueroa
N.Y. App. Div. · 2008 · confidence medium
Even assuming that it was, inasmuch as the Department of Correctional Services acts as an administrative agency when it maintains surveillance cameras, materials in its possession are not within the control of the People and, consequently, the People have no obligation to produce them (see People v Howard, 87 NY2d 940, 941 [1996]; People v Ross, 282 AD2d 929, 931 [2001], lv denied 96 NY2d 907 [2001]; People v Livingston, 262 AD2d 786, 790 [1999], lv denied 94 NY2d 881 [2000]).
discussed Cited as authority (rule) People v. Nelson
N.Y. App. Div. · 2003 · confidence medium
Further, because the Department of Correctional Services was acting as an administrative agency in this matter, the People had no duty to attempt to locate and gain possession of the report for the purpose of turning it over to defendant (see People v Howard, 87 NY2d 940, 941 [1996]; People v Livingston, 262 AD2d 786, 790 [1999], lv denied 94 NY2d 881 [2000]; see also People v Kelly, 88 NY2d 248, 251-252 [1996]).
discussed Cited "see" People v. Walker
N.Y. App. Div. · 2024 · signal: see · confidence high
Here, even assuming, arguendo, that the parole officer's disciplinary records from DOCCS met the relevancy prong as being related to the subject matter of the case, we conclude that the People established that those records did not meet the possessory prong required to prompt their initial discovery obligation with respect thereto ( see CPL 245.20 [1]; People v Walker , 228 AD3d 1318 , 1320 [4th Dept 2024]). "[F]or the purposes of discovery, DOCCS is not a 'law enforcement' agency" and is " 'outside of the legal or practical control of local prosecutors' and, therefore, the People cannot be de…
discussed Cited "see" People v. Lewis
N.Y. App. Div. · 2018 · signal: see · confidence high
Several cases have held that "[e]vidence gathered by prison staff . . . generally is not 'under the control or in the possession of the People or its agents, but [is] instead in the possession of an administrative agency that was not performing law enforcement functions'" ( 125 AD3d at 1111 , quoting People v Smith , 89 AD3d 1148, 1150 [2011], lv denied 19 NY3d 968 [2012]; see People v Howard , 87 NY2d 940, 941 [1996]; People v Lanfranco , 124 AD3d 1144, 1145-1146 [2015], lv denied 25 NY3d 1203 [2015]; People v Figueroa , 53 AD3d 779, 781 [2008], lv denied 11 NY3d 832 [2008]; People v Ross , 2…
discussed Cited "see" People v. Williams
N.Y. App. Div. · 2015 · signal: see · confidence high
Nevertheless, “the evidence of guilt was overwhelming and there was no significant probability that the error [ ] contributed to the defendant’s conviction! ]” (People v Gopaul, 112 AD3d 966, 967 [2013]; see People v Howard, 87 NY2d 940, 942 [1996]; People v Crimmins, 36 NY2d 230, 241-242 [1975]).
discussed Cited "see" People v. Duran
N.Y. App. Div. · 2004 · signal: see · confidence high
The People did not have possession or control of the material and were under “no obligation to attempt to locate and gain possession of’ such material (People v Livingston, 262 AD2d 786, 790 [1999], lv denied 94 NY2d 881 [2000]; see People v Howard, 87 NY2d 940, 941 [1996]).
discussed Cited "see" People v. Ficarrota
NY · 1997 · signal: see · confidence high
It is well settled that "[t]he standard for reviewing the legal sufficiency of evidence in a criminal case is whether 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (People v Contes, 60 NY2d 620, 621 , quoting Jackson v Virginia, 443 US 307, 319 [emphasis in original]; see, People v Howard, 87 NY2d 940, 942 ; People v Cabey, 85 NY2d 417, 420 ).
discussed Cited "see, e.g." People v. Kelly
NY · 1996 · signal: see also · confidence low
The principal consideration for determining whether prosecutors have a fairness obligation under Rosario to turn over various materials focuses on whether these items actually are in or subject to the possession or control of the particular prosecution office (People v Flynn, 79 NY2d 879, 882 , supra; People v Tissois, 72 NY2d 75, 78 ; People v Reedy, 70 NY2d 826, 827 , supra; see also, People v Howard, 87 NY2d 940, 941 , supra).
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Clifford Howard, Appellant
New York Court of Appeals.
Feb 13, 1996.
663 N.E.2d 1252
APPEARANCES OF COUNSEL, John A. Orando, Syracuse, Ivette Iza Zenner and Jacqueline B. Jones for appellant., James B. Vargason, District Attorney of Cayuga County, Auburn (Jon E. Budelmann and Karl J. Sleight of counsel), for respondent., Richard A. Brown, District Attorney of Queens County, pro se, Kew Gardens (Steven J. Chananie and Linda Cantoni of counsel), and Robert M. Morgenthau, District Attorney of New York County, pro se, New York City (Patrick J. Hynes of counsel), amici curiae.
Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick Concur.
Cited by 228 opinions  |  Published

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The statements of witnesses made during defendant’s prison disciplinary proceeding were not within the People’s control and therefore did not constitute Rosario material. The statements in question were embodied in transcripts that were generated and held by the State Department of Correctional Services. That agency has no duty to share such material with the District Attorney for the county in which the underlying conduct occurred. Further, although Correction Department facilities are at the end of the State’s law enforcement chain, the Correction Department itself is, in most respects, an administrative rather than a law enforcement agency. Under these circumstances, the People had no obligation to attempt to locate and gain possession of the material for the purpose of turning them over to the defense (see, People v Washington, 86 NY2d 189, 192-193; People v Flynn, 79 NY2d 779, 882).

Defendant’s other preserved contentions are lacking in merit. Contrary to defendant’s argument, there was support in the Wade hearing record for the Appellate Division’s finding that the inmate-eyewitness’s in-court identification had an independent source. Thus, that identification testimony was[*942] properly admitted at trial, regardless of whether or not the pretrial photo array that had been shown to the witness was unduly suggestive. Although the admission of testimony by a correction officer regarding that pretrial identification procedure was impermissible bolstering, the error was harmless in light of the clear and strong evidence of defendant’s guilt (see, People v Mobley, 56 NY2d 584). Finally, the circumstantial evidence offered at trial was, when viewed in a light most favorable to the People, legally sufficient to establish defendant’s guilt beyond a reasonable doubt (see, People v Norman, 85 NY2d 609, 620-622; People v Contes, 60 NY2d 620). Defendant’s related claim that the guilty verdict was against the weight of the evidence is beyond our limited power to review questions of law (see, People v Bleakley, 69 NY2d 490, 493).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.