Summary
In People v Russo (109 A.D.2d 855, 856, supra) the Court said: "the police have a duty to disclose exculpatory material in their control, failure to so disclose will constitute reversible error if such evidence is material to the defense and likely to have changed the jury's verdict (see, People v McMullen, 92 A.D.2d 1059, 1060)."
Summary of this case from People v. JacksonOpinion
March 18, 1985
Appeal from the County Court, Nassau County (Harrington, J.).
Judgments affirmed.
The record amply supports the jury's verdict finding defendant guilty of robbery in the first degree. Although complainant's description of the perpetrator, given to the police immediately after the crime, was inconsistent with defendant's physical appearance at the time of trial, the testimony of the complainant as well as that of two police officers reveals that there had indeed been a radical change in defendant's appearance. The complainant's positive identification of defendant is in no way minimized because of this change. The jury could have reasonably inferred that defendant had attempted to disguise his appearance, such conduct being indicative of a "consciousness of guilt" ( see, People v. Haitz, 65 A.D.2d 172, 176). The issue of credibility is primarily for the jury and there is no basis to disturb the jury's decision to credit complainant's identification testimony ( see, People v. Joyiens, 39 N.Y.2d 197, 203; People v. Gruttola, 43 N.Y.2d 116, 122).
Nor was the pretrial identification procedure unnecessarily suggestive and conducive to irreparable mistaken identification ( see, Stovall v. Denno, 388 U.S. 293, 301-302). Complainant's identification of defendant emanated from his independent recollection and was not based on any suggestive behavior on the part of police ( see, People v. Logan, 25 N.Y.2d 184, cert denied 396 U.S. 1020).
Furthermore, the attempt by defendant to assign error based on a violation of the mandate of Brady v. Maryland ( 373 U.S. 83), is also without merit. Though the police have a duty to disclose exculpatory material in their control, failure to so disclose will constitute reversible error if such evidence is material to the defense and likely to have changed the jury's verdict ( see, People v. McMullen, 92 A.D.2d 1059, 1060). The photographs in dispute were of a nonexculpatory nature. In any event, in all likelihood, the photographs would not have affected the judgment of the jury, in view of the overwhelming evidence of defendant's guilt ( see, People v. Malizia, 62 N.Y.2d 755, 757, cert denied ___ US ___, 105 S Ct 327; People v. Crimmins, 36 N.Y.2d 230).
Lastly, we conclude that the sentencing court did not abuse its discretion and there is no basis for a downward modification of defendant's sentences ( People v. Suitte, 90 A.D.2d 80). Mangano, J.P., Gibbons, Bracken and Niehoff, JJ., concur.