Opinion
January 16, 1996
Appeal from the Supreme Court, Queens County (Demakos, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, there was no "unnecessary delay" in his arraignment (CPL 140.20; see, People v Wilson, 56 N.Y.2d 692; People v Blake, 35 N.Y.2d 331; People v Quartieri, 171 A.D.2d 889; People v Cooper, 101 A.D.2d 1).
The defendant's confession was voluntary and not subject to suppression ( see, People v Ortlieb, 84 N.Y.2d 989).
The defendant maintains that the prosecutor's failure to provide him with a photographic array was error. We disagree. It is axiomatic that a prosecutor is under a duty to turn over, upon the request of defense counsel, evidence favorable to the accused ( see, Brady v Maryland, 373 U.S. 83). However, it is well settled that evidence is not deemed to be Brady material when the defendant has knowledge of it ( see, People v Fein, 18 N.Y.2d 162; People v LaRocca, 172 A.D.2d 628). Here, the record clearly establishes that the defense counsel knew of the photographic array and of the non-identification by a witness who had not been called by the People to testify at trial. Additionally, the defense counsel stated at trial that he had spoken to the witness and that the defense counsel's investigator had spoken to the witness on two occasions. The conversations revealed the substance of the witness's interview by the police. Moreover, the defense counsel had scheduled the witness to testify, however, on the day that the witness was to be called, the defense counsel indicated that he had decided not to call the witness. Thus, contrary to the defendant's contention, there was no Brady violation as a result of the People's failure to provide him with the photographic array.
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Bracken, J.P., Balletta, Rosenblatt and Altman, JJ., concur.