Opinion
KA 00-01303
October 1, 2002.
Appeal from a judgment of Wayne County Court (Sirkin, J.), entered April 13, 2000, convicting defendant after a jury trial of, inter alia, murder in the second degree.
D.J. J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
CHRISTOPHER T. FAETH, DEFENDANT-APPELLANT PRO SE.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (MELVIN BRESSLER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HAYES, HURLBUTT, KEHOE, AND BURNS, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25) and robbery in the first degree (§ 160.15 [1]), defendant contends that he was denied a fair trial by prosecutorial misconduct. Contrary to the contention of defendant, the prosecutor did not fail to provide him with Brady material. "[E]vidence is not deemed to be Brady material when the defendant has knowledge of it or is in possession of it" and here defense counsel had knowledge of the statements at issue ( People v. Ahmed, 244 A.D.2d 415, 415, lv denied 91 N.Y.2d 888). In any event, those statements concerned an unrelated incident and were not exculpatory ( see generally People v. Fein, 18 N.Y.2d 162, 169-170, mot to amend remittitur granted 18 N.Y.2d 722, 19 N.Y.2d 691, appeal dismissed and cert denied 385 U.S. 649, reh denied 386 U.S. 978; People v. Murray, 140 A.D.2d 949, 950, lv denied 72 N.Y.2d 960). Defendant failed to preserve for our review his remaining contentions concerning prosecutorial misconduct ( see CPL 470.05), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).
Defendant also failed to preserve for our review his contention that County Court erred in failing to strike the direct testimony of a prosecution witness who was improperly permitted to invoke his Fifth Amendment privilege against self-incrimination during cross-examination concerning an unrelated robbery ( see People v. Owusu, 234 A.D.2d 893, 893, lv denied 89 N.Y.2d 1039). In any event, although the invocation of the privilege was not proper because the witness had already pleaded guilty to the unrelated robbery and had served his sentence ( see generally People v. Brady, 97 N.Y.2d 233, 235-236; People v. Betts, 70 N.Y.2d 289, 292), we conclude that any error in failing to strike the testimony of the witness is harmless. The court properly instructed the jury that the invocation of the privilege "related only to the witness's credibility and not to the facts surrounding the crimes for which defendant was charged" ( People v. English, 277 A.D.2d 1021, 1022, lv denied 96 N.Y.2d 783; see Owusu, 234 A.D.2d at 893).
Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence. There is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Bleakley, 69 N.Y.2d 490, 495). In addition, "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that" defendant received meaningful representation ( People v. Baldi, 54 N.Y.2d 137, 147). The sentence is neither unduly harsh nor severe. We have reviewed the contentions of defendant in his pro se supplemental brief and conclude that they are without merit.