Opinion
May 19, 1994
Appeal from the County Court of Albany County (Harris, J., Breslin, J.).
Following the imposition of the sentence upon his conviction of the crime of sodomy in the first degree, defendant moved, pursuant to CPL 440.10, to vacate the judgment of conviction on the basis that material evidence adduced at the trial was false, that new evidence had been discovered and that there was prejudicial conduct on the part of the prosecution resulting in the denial of Rosario and Brady material. County Court denied the motion. These appeals by defendant ensued.
Defendant's conviction rests in large part upon the testimony of the victim's mother which, as developed on cross-examination, was at variance with prior statements she had given to the police. Defendant did not establish at trial or on his CPL 440.10 motion that the mother's testimony regarding defendant's sexual contact with her daughter was false. Moreover, even if he had, he would still not be entitled to a reversal of his conviction on the ground of false testimony because there is no evidence in the record indicating that the prosecutor knew that this testimony or the testimony of any witness was false (see, People v. Pelchat, 62 N.Y.2d 97, 105; People v. Robertson, 12 N.Y.2d 355, 359).
We find that defendant's claim of newly discovered evidence lacks substance due to his failure to establish that such evidence could not, with due diligence, have been discovered prior to trial (see, People v. Civitello, 152 A.D.2d 812, 814, lv denied 74 N.Y.2d 947). In any event, it is highly unlikely that this "new" evidence would change the result if a new trial was granted (see, People v. Latella, 112 A.D.2d 321, 323).
Turning to defendant's Rosario claim, he sets forth in his brief 17 alleged items of Rosario material that he maintains were not turned over by the People. Aside from the fact that some of these items are not Rosario materials, as they are not statements of prosecution witnesses (see, People v. Ranghelle, 69 N.Y.2d 56, 59; see also, CPL 240.45), this issue has not been preserved for appellate review due to defendant's failure to establish at trial whether these materials were available (see, People v. Laguer, 195 A.D.2d 483, 485, lv denied 82 N.Y.2d 756). Nor could it be considered on his CPL 440.10 motion because he again did not adduce any proof that the claimed Rosario materials were available (see, People v. Boyette, 201 A.D.2d 490).
Defendant's Brady claim is meritless because the record does not indicate that at anytime the evidence he claims is Brady material either existed or was in the possession of the People (see, People v. Mullady, 180 A.D.2d 408, 409, lv denied 80 N.Y.2d 835). Additionally, because defendant did not make a specific request, reversal of his conviction is not warranted in light of his failure to establish that, had the claimed Brady material been disclosed, there is a reasonable probability that the result of the trial would have been different (see, People v. Vilardi, 76 N.Y.2d 67, 73-76; People v. Nedrick, 166 A.D.2d 725, lv denied 77 N.Y.2d 842).
Therefore, for these reasons, we affirm.
Cardona, P.J., Casey, Weiss and Peters, JJ., concur. Ordered that the judgment and order are affirmed.