Opinion
11754 Ind. 2699/14
07-02-2020
The PEOPLE of the State of New York, Respondent, v. Rafael GONZALEZ, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Kristian D. Amundsen of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Steven J. Miraglia of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Kristian D. Amundsen of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Kern, Oing, Gonza´lez, JJ.
Judgment, Supreme Court, Bronx County (Robert A. Neary, J.), rendered August 2, 2017, convicting defendant, after a jury trial, of attempted gang assault in the first degree and assault in the third degree (two counts), and sentencing him to an aggregate term of 8½ years, unanimously affirmed.
The court providently exercised its discretion in responding to the People's belated disclosure of some records relating to the two victims' injuries by adjourning for four days and allowing recross-examination of the victims, while denying requests for a mistrial or preclusion of certain evidence (see People v. Cabrera, 137 A.D.3d 707, 708, 28 N.Y.S.3d 681 [1st Dept. 2016], lv denied 27 N.Y.3d 1129, 39 N.Y.S.3d 111, 61 N.E.3d 510 [2016] ). The court reasonably found that the People's delay in obtaining the records, including some materials concerning shoulder surgery received by one victim, did not result in substantial prejudice, because, among other things, the defense had received other records of the same surgery about two weeks earlier, well before the opening statements. These other records adequately revealed the extent and significance of the victims' injuries, and we find unpersuasive defendant's argument that his trial strategy was impacted by the belated disclosure of the records at issue. Moreover, the delay was not caused by bad faith (see People v. Aulet, 221 A.D.2d 281, 283, 634 N.Y.S.2d 463 [1st Dept. 1995], lv denied 88 N.Y.2d 980, 649 N.Y.S.2d 386, 672 N.E.2d 612 [1996] ). In any event, any error was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant's arguments concerning the People's summation are unpreserved, 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] ). Any improprieties in the challenged remarks by the prosecutor were not so egregious as to deprive defendant of a fair trial (see People v. D'Alessandro, 184 A.D.2d 114, 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] ). We perceive no basis for reducing the sentence.