Opinion
2014-03-21
The PEOPLE of the State of New York, Respondent, v. Gregory BERNARD, Defendant–Appellant. (Appeal No. 1.).
Beth A. Ratchford, Rochester, for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Beth A. Ratchford, Rochester, for Defendant–Appellant.Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (§ 265.03[3] ). Defendant contends in both appeals that the People failed to disclose Brady material in a timely manner. We agree. We conclude, however, that the Brady violation does not require reversal because the information was turned over as Rosario material prior to jury selection, thus affording defendant a “meaningful opportunity” to use the information during cross-examination ( People v. Middlebrooks, 300 A.D.2d 1142, 1143, 752 N.Y.S.2d 759,lv. denied99 N.Y.2d 630, 760 N.Y.S.2d 112, 790 N.E.2d 286;see People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349;People v. Abuhamra, 107 A.D.3d 1630, 1631, 968 N.Y.S.2d 294,lv. denied22 N.Y.3d 1038, 981 N.Y.S.2d 372, 4 N.E.3d 384). Contrary to defendant's contention, there is no “reasonable probability that, had the evidence been disclosed to [him]” prior to the Wade hearing, “ ‘the result of the [hear]ing would have been different’ ” ( People v. Chin, 67 N.Y.2d 22, 33, 499 N.Y.S.2d 638, 490 N.E.2d 505). Defendant failed to preserve for our review his alternative contention that County Court erred in failing to reopen the Wade hearing based upon the delayed disclosure ( see People v. Clark, 28 A.D.3d 1231, 1232, 813 N.Y.S.2d 617;People v. Highsmith, 259 A.D.2d 1006, 1007, 688 N.Y.S.2d 298,lv. denied93 N.Y.2d 925, 693 N.Y.S.2d 509, 715 N.E.2d 512), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
We reject the further contention of defendant that he was denied effective assistance of counsel by his attorney's failure to request a limiting instruction with respect to certain Molineux evidence. Indeed, defense counsel “declined such an instruction on the record after a colloquy with County Court in which it was clear that doing so was part of a legitimate trial strategy” ( People v. Smith, 41 A.D.3d 964, 965, 838 N.Y.S.2d 690,lv. denied9 N.Y.3d 881, 842 N.Y.S.2d 793, 874 N.E.2d 760), and we will not “second-guess” that strategic decision on appeal ( People v. Cherry, 46 A.D.3d 1234, 1238, 850 N.Y.S.2d 645,lv. denied10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85;see People v. Williams, 107 A.D.3d 1516, 1516–1517, 966 N.Y.S.2d 784,lv. denied21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860;People v. Copeland, 43 A.D.3d 1436, 1436–1437, 842 N.Y.S.2d 651,lv. denied9 N.Y.3d 1032, 852 N.Y.S.2d 17, 881 N.E.2d 1204). Moreover, our review of the record as a whole establishes that defense counsel provided meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.