Opinion
February 22, 1993
Appeal from the Supreme Court, Rockland County (Meehan, J.).
Ordered that the judgment is affirmed.
The defendant contends that the trial court erred when it denied an application for a mistrial predicated on the People's alleged failure to divulge Brady material prior to the trial (see, Brady v Maryland, 373 U.S. 83). However, since the exculpatory value of the evidence was entirely speculative, it did not fall within the rule enunciated in Brady. In particular, the defendant did not show that there was a "reasonable possiblity" that any failure to disclose such evidence contributed to the verdict (see, People v Vilardi, 76 N.Y.2d 67, 77; People v Delvecchio, 187 A.D.2d 726).
Furthermore, we find that the defendant was not denied effective assistance of counsel because his attorney formerly represented one of the People's chief prosecution witnesses in an unrelated criminal matter. In order to prevail on a claim of ineffective assistance of counsel, the defendant must show that the conflict bears a substantial relation to or operated on the conduct of his defense (see, People v Ortiz, 76 N.Y.2d 652, 657; People v Gonzalez, 180 A.D.2d 816). Here, the defendant failed to show that his attorney's former representation of the witness in any way affected the conduct of his cross-examination (see, People v Seale, 47 N.Y.2d 923, 925).
The hearing court properly permitted eyewitnesses to the incident to make an in-court identification of the defendant at the trial. The witnesses' prior failure to identify the defendant in a photographic array related to the weight, and not the admissibility, of the testimony (see, People v Cruz, 167 A.D.2d 306).
We have reviewed the defendant's remaining contentions and find them to be without merit. Mangano, P.J., Sullivan, Balletta and O'Brien, JJ., concur.