Opinion
2013–10585 Ind. No. 1468/07
06-17-2020
The PEOPLE, etc., Respondent, v. Sharef REDMON, Appellant.
Paul Skip Laisure, New York, N.Y. (Denise A. Corsi´ of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Denise A. Corsi´ of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Danny K. Chun, J.), entered October 8, 2013, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered March 28, 2008, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the order is affirmed.
The defendant moved pursuant to CPL 440.10 to vacate his judgment of conviction on the basis that the prosecutor committed Brady violations (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ), and that his counsel was ineffective for failing to request that the trial court review, in camera, certain DD–5 reports to determine whether they contained Brady material.
Contrary to the Supreme Court's conclusion, these contentions were not subject to a mandatory procedural bar. CPL 440.10(2) requires denial of a motion to vacate a judgment, inter alia, when the ground raised on the motion was previously determined on the merits upon a direct appeal or where sufficient facts appeared on the record to have permitted review of the issue on direct appeal but no such review occurred due to the defendant's unjustifiable failure to raise the issue on appeal (see CPL 440.10[2][a], [c] ). Although, on direct appeal, this Court addressed a contention raised by the defendant regarding a potential violation of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 ; see People v. Redmon, 81 A.D.3d 752, 753, 917 N.Y.S.2d 229, the defendant's current contentions involve an alleged Brady violation. Moreover, the defendant's current contentions are based on matters dehors the record on direct appeal and, thus, were not, and could not have been, reviewed on direct appeal.
Nevertheless, the defendant's contentions were properly rejected without a hearing. Counsel was not ineffective for failing to request an in camera review of the DD–5 reports, as mere belated disclosure of certain Brady material and the number of DD–5 reports not disclosed, without more, provided an insufficient factual basis for arguing that the prosecutor had improperly denied the existence of Brady material in the reports (see People v. Rodriguez, 181 A.D.2d 841, 842, 581 N.Y.S.2d 396 ; see also People v. Contreras, 12 N.Y.3d 268, 272, 879 N.Y.S.2d 369, 907 N.E.2d 282 ; cf. People v. Poole, 48 N.Y.2d 144, 149, 422 N.Y.S.2d 5, 397 N.E.2d 697 ; People v. Consolazio, 40 N.Y.2d 446, 453, 387 N.Y.S.2d 62, 354 N.E.2d 801 ). Similarly, the defendant failed to demonstrate that his judgment of conviction should be vacated based on an alleged Brady violation in failing to disclose the DD–5 reports, or that he was entitled to a hearing on that issue (see People v. Jones, 115 A.D.3d 984, 986, 982 N.Y.S.2d 770 ).
BALKIN, J.P., LEVENTHAL, MILLER and CHRISTOPHER, JJ., concur.