Opinion
Argued March 1, 2001.
March 26, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered November 4, 1998, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas S. Burka of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant moved for a mistrial on the ground that the prosecutor failed to disclose exculpatory statements made by a prosecution witness. Although the trial court denied the motion, it instructed the jury to disregard the testimony of this witness in its entirety.
The prosecution has an affirmative duty to disclose evidence favorable to the defendant that is material to his or her guilt, including evidence that impeaches the credibility of prosecution witnesses (see, Brady v. Maryland, 373 U.S. 83; People v. Mack, 235 A.D.2d 548). The failure of the prosecution to disclose such evidence does not require reversal, where, as here, there is no reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed (see, People v. Alongi, 131 A.D.2d 767). In any event, failure to timely produce Brady material does not require a mistrial or dismissal if a less drastic remedy can cure any prejudice (see, People v. Lussier, 205 A.D.2d 910). Here, the trial court's instructions to the jury cured any potential prejudice to the defendant.
The defendant's remaining contentions are without merit.