Opinion
November 15, 1995
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Pine, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the second degree and three counts of attempted robbery in the first degree. We reject the argument of defendant that his statement to Buffalo Police Detectives should have been suppressed as involuntary. The record supports the determinations of Supreme Court, following a Huntley hearing, that defendant was given proper Miranda warnings and that he effectively waived his rights and freely and voluntarily gave a statement. In light of our determination that defendant's statement was properly admitted at trial, it is unnecessary to reach the argument of defendant that, if his statement were suppressed, the remaining evidence would not sufficiently corroborate the testimony of the accomplices.
The court did not abuse its discretion in denying defendant's request for an adjournment to secure the testimony of witnesses whose identity was revealed in a police report turned over to the defense immediately prior to the commencement of the trial. The report was not Brady material because it did not contain information that was favorable and material to the defense (see, People v Vilardi, 76 N.Y.2d 67, 73; People v Delvecchio, 187 A.D.2d 726, lv denied 81 N.Y.2d 884). In any event, the report was given to defendant in sufficient time for him to make meaningful use of it (see, People v Cortijo, 70 N.Y.2d 868, 870; People v Wilson, 167 A.D.2d 946, 947, lv denied 77 N.Y.2d 845). Defendant failed to object to the prosecutor's comment on summation that a prosecution witness had "the air and appearance of a believable witness". Thus, his present challenge to its propriety is not preserved for our review (see, CPL 470.05). We decline to exercise our power to review the issue as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). Defendant's sentence is neither unduly harsh nor severe (see, CPL 470.15 [b]).
The conviction of manslaughter in the second degree is not inconsistent with the acquittal of two counts of felony murder (see, People v Goodfriend, 64 N.Y.2d 695, 697), nor is the conviction of three counts of attempted robbery in the first degree inconsistent with the acquittal of three counts of burglary in the first degree (see, People v La Pella, 135 A.D.2d 735, lv denied 71 N.Y.2d 898). The court did not err in accepting the testimony of the medical examiner without formally certifying the witness as an expert (see, People v Gordon, 202 A.D.2d 166, 167, lv denied 83 N.Y.2d 911). The People concede that a Bruton violation occurred when the statement of a non-testifying codefendant was admitted at the joint trial. Because that statement was merely cumulative of other evidence properly admitted at trial, we conclude that the error was harmless (see, People v Shelton, 209 A.D.2d 963, lv denied 85 N.Y.2d 980).
Because it is theoretically impossible to commit the crime of attempted robbery in the first degree under Penal Law § 160.15 (1), we modify the judgment by reversing defendant's conviction of attempted robbery in the first degree under count six of the indictment, vacating the sentence imposed thereon and dismissing that count (see, People v Shelton, supra; People v Miller, 201 A.D.2d 109, 112-113, lv granted 84 N.Y.2d 938).