Opinion
June 25, 1990
Appeal from the County Court, Nassau County (Goodman, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by deleting the provision thereof which directed that the terms of imprisonment shall run consecutively to each other, and substituting therefor a provision that the terms of imprisonment shall run concurrently; as so modified, the judgment is affirmed.
We reject the defendant's contention that his convictions must be reversed due to the fact that the People delayed in turning over certain material which arguably might fall under the Rosario and Brady rules (People v. Rosario, 9 N.Y.2d 286; Brady v. Maryland, 373 U.S. 83). Inasmuch as the material was produced immediately after it was requested (cf., People v Vilardi, 76 N.Y.2d 67), and the defendant had a meaningful opportunity to use it prior to the trial (cf., People v Jackson, 157 A.D.2d 126), he was not prejudiced by the delay (People v. Barreto, 143 A.D.2d 920). Nor is there a reasonable probability that had the material been disclosed earlier, the result of the trial would have been different (People v Jemmott, 144 A.D.2d 694).
In addition, the trial court did not improvidently exercise its discretion by denying the defendant's motion for separate trials of the four counts of the indictment. A review of the record reveals that each crime was separately presented and proved, and in light of the fact that the jury acquitted the defendant on one of the charges, and was unable to agree with respect to another charge, he can make no showing of prejudice which would have warranted separate trials (see, People v. Angelo, 133 A.D.2d 832; People v. Barksdale, 140 A.D.2d 531).
The trial court properly denied the defendant's pro se motion to dismiss the indictment on constitutional and statutory speedy trial grounds without prejudice to renewal by the defendant's counsel. The defendant was represented by counsel throughout the proceedings. Therefore, the trial court's refusal to entertain his pro se motion was not an improvident exercise of discretion (see, People v. White, 73 N.Y.2d 468; People v. Ford, 143 A.D.2d 841). Further, the defendant's motion to set aside the verdict, although made by counsel, was not "in writing" (CPL 330.40 [a]), and therefore the trial court did not improvidently exercise its discretion in summarily denying it (see, People v Williams, 134 A.D.2d 304).
Viewing the evidence adduced at the trial in a light most favorable to the People (People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15).
A review of the court's charge to the jury as a whole reveals that it was properly advised of the applicable principles of law (see, People v. Rodriguez, 161 A.D.2d 737; cf., People v. La Rosa, 112 A.D.2d 954).
We find the sentence was excessive to the extent indicated.
We have considered the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.