Opinion
9608 Ind. 3337/14
06-13-2019
The PEOPLE of the State of New York, Respondent, v. Francis BENJAMIN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), and White & Case LLP, New York (Michaela E. Pickus of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), and White & Case LLP, New York (Michaela E. Pickus of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.
Friedman, J.P., Richter, Tom, Gesmer, Moulton, JJ.
Judgment, Supreme Court, Bronx County (Judith Lieb, J.), rendered August 8, 2016, as amended September 6, 2016, convicting defendant of promoting prison contraband in the first degree, and sentencing him to a term of 2? to 7 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations.
The court providently exercised its discretion when it denied defendant's motion to dismiss the indictment, which was the only remedy requested for the belated, midtrial disclosure of Department of Correction use of force reports. The prosecutor had made diligent efforts to obtain this Rosario material sooner, but it had been misfiled by a correction officer. The court provided a suitable remedy when it gave counsel a two-day adjournment to review the material before cross-examining certain witnesses, along with the opportunity to recall other witnesses for further cross-examination based on the belatedly disclosed material. Accordingly, defense counsel received this material when it was still useful because he was able to cross-examine the applicable witnesses effectively (see People v. Castillo, 34 A.D.3d 221, 222, 823 N.Y.S.2d 142 [1st Dept. 2006], lv denied 8 N.Y.3d 879, 832 N.Y.S.2d 491, 864 N.E.2d 621 [2007], and defendant has not shown any substantial prejudice from the delay in disclosure (see People v. Banch, 80 N.Y.2d 610, 617, 593 N.Y.S.2d 491, 608 N.E.2d 1069 [1992] ).
The court also providently exercised its discretion when it declined to strike the testimony of a correction officer (again the only remedy requested) based on his belated disclosure of a calendar book entry. The sparse entry contained information already known to defendant, namely, the times and locations of the officer's duties on the day of the incident. Defendant was able to cross-examine the officer about the entry, and there was likewise no prejudice.
To the extent defendant is claiming that the alleged nondisclosure of a videotape also constituted a Rosario violation, we find that the record fails to support defendant's assertion that such a videotape ever existed.
By failing to object, by failing to make specific objections, or by failing to request further relief after the court sustained objections, defendant failed to preserve his remaining challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ). The challenged remarks were generally permissible responses to defense counsel's attacks on the officers' credibility. Any isolated improper remarks were sufficiently addressed by the court's instructions to the jury.
We perceive no basis for reducing the sentence.