Opinion
01-27-2016
The PEOPLE, etc., respondent, v. Dominique GOMEZ, appellant.
Jillian S. Harrington, Staten Island, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Jillian S. Harrington, Staten Island, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
ORDERED that the judgment, as amended, is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed on the convictions of robbery in the second degree from determinate terms of imprisonment of seven years, followed by five years of postrelease supervision, to determinate terms of imprisonment of five years, followed by two years of postrelease supervision; as so modified, the judgment, as amended, is affirmed.
The defendant failed to preserve for appellate review his contention that he was deprived of his constitutional rights to confront witnesses against him and to present a defense by the County Court's limitation of cross-examination of his accomplices regarding the potential sentence they would have faced had they not pleaded guilty to lesser charges in exchange for their testimony (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 ; People v. Dorcinvil, 122 A.D.3d 874, 996 N.Y.S.2d 661 ). In any event, any error was harmless beyond a reasonable doubt, as there was overwhelming evidence of the defendant's guilt and no reasonable possibility that any such error might have contributed to the defendant's conviction (see People v. Hardy, 4 N.Y.3d 192, 198, 791 N.Y.S.2d 513, 824 N.E.2d 953 ; People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). The defendant's further contention that the court committed evidentiary error in limiting cross-examination is without merit (see People v. Cobos, 57 N.Y.2d 798, 802, 455 N.Y.S.2d 588, 441 N.E.2d 1106 ; People v. De Vito, 56 N.Y.2d 846, 453 N.Y.S.2d 168, 438 N.E.2d 874 ; People v. Bisnett, 144 A.D.2d 567, 570, 534 N.Y.S.2d 424 ).The County Court providently exercised its discretion in denying the defendant's motion for a mistrial based on the People's alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 with regard to their disclosure, during the trial, that one of the complainants had admitted to lying to the grand jury about certain facts. To the extent that this impeachment evidence constituted Brady material, it was disclosed at a time that permitted the defense to effectively use the evidence (see People v. Carter, 131 A.D.3d 717, 720, 15 N.Y.S.3d 855 ; People v. Blyden, 83 A.D.3d 542, 542–543, 922 N.Y.S.2d 20 ; People v. Robinson, 61 A.D.3d 784, 876 N.Y.S.2d 520 ; People v. Myron, 28 A.D.3d 681, 683–684, 814 N.Y.S.2d 198 ). Further, there is no reasonable probability that earlier disclosure would have affected the outcome of the trial (see People v. Garrett, 23 N.Y.3d 878, 892, 994 N.Y.S.2d 22 ).
The defendant correctly contends that the People violated Criminal Procedure Law § 240.20(1) by failing to timely disclose, in response to his demand, the data obtained from his cell phone and the People's possession of a knife recovered from the vehicle in which he was riding at the time of the crimes (see CPL 240.20[1][c], [f] ; People v. Jenkins, 98 N.Y.2d 280, 283–284, 746 N.Y.S.2d 651, 774 N.E.2d 716 ). However, reversal is not warranted based on these violations because the defendant failed to establish that he was prejudiced by the delay in disclosure (see People v. Jenkins, 98 N.Y.2d at 285, 746 N.Y.S.2d 651, 774 N.E.2d 716 ; People v. Cunningham, 189 A.D.2d 821, 592 N.Y.S.2d 447 ). The requested remedy of preclusion of the cell phone data was properly denied as unwarranted (see People v. Cunningham, 189 A.D.2d 821, 592 N.Y.S.2d 447 ). Although defense counsel then requested a continuance to consider the newly disclosed materials, he later withdrew that request, conceding that there had not been any prejudice from the delayed disclosure. Further, the defendant was acquitted of the only charge related to his alleged possession and use of the knife.
Contrary to the defendant's contention, he was not deprived of a fair trial or the right to present a defense as a result of the County Court's denial of his requests for a continuance of one week to obtain data from an accomplice's cell phone (see People v. Stewart, 89 A.D.3d 1044, 933 N.Y.S.2d 112 ), or for an adverse inference charge related to the People's failure to obtain such evidence (see People v. Durant, 26 N.Y.3d 341, 2015 N.Y. Slip Op. 08609 [2015] ). The court providently exercised its discretion in making these rulings (see People v. Pena, 113 A.D.3d 701, 978 N.Y.S.2d 693 ; People v. Dobson, 268 A.D.2d 442, 701 N.Y.S.2d 628 ).
The defendant failed to preserve for appellate review his contention that the sentence imposed by the County Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ; People v. Ray, 100 A.D.3d 933, 934, 954 N.Y.S.2d 199 ). In any event, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations does not, standing alone, establish that the defendant was punished for exercising his right to trial (see People v. Pena, 50 N.Y.2d 400, 411, 429 N.Y.S.2d 410, 406 N.E.2d 1347 ; People v. Ray, 100 A.D.3d at 934, 954 N.Y.S.2d 199 ).
The sentence imposed was excessive to the extent indicated herein.