Opinion
570051/17
01-21-2022
The People of the State of New York, Respondent, v. Willie Stokes, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Julio Rodriguez III, J.), rendered January 13, 2017, convicting him, after a nonjury trial, of attempted assault in the third degree, attempted criminal obstruction of breathing or blood circulation and harassment in the second degree, and imposing sentence.
PRESENT: Edmead, P.J., McShan, Silvera, JJ.
PER CURIAM.
Judgment of conviction (Julio Rodriguez III, J.), rendered January 13, 2017, affirmed.
The court properly denied defendant's application for an in camera review of the victim's psychiatric records, which "are to be disclosed only when their confidentiality is significantly outweighed by the interests of justice" (People v Duran, 276 A.D.2d 498 [2000] [internal quotation marks omitted]). Defendant failed to make an adequate showing that the psychiatric records "might contain material bearing on the reliability and accuracy of the witness's testimony" (People v Duwe, 164 A.D.3d 1256, 1257 [2018], lv denied 32 N.Y.3d 1110 [2018] [internal quotation marks omitted]). To the extent that the victim's anxiety disorders and use of medications at different times was relevant, defendant was able to elicit these matters on cross examination (see People v Ouanes, 123 A.D.3d 480 [2014], lv denied 25 N.Y.3d 1075 [2015]). In addition, there was no showing that she had a history of hallucinations, delusions or false claims of assault (see People v Duran, 276 A.D.2d at 498).
The court providently exercised its discretion in declining to provide an adverse inference instruction based on the People's failure to produce the memo books and other notes of the responding officers who spoke to the victim at the hospital. The record does not demonstrate a "factual basis" that the officer had written the victim's statements in his memo book or on any documents other than the "scratch 61" complaint report or domestic incident report [DIR] (People v Young, 61 A.D.3d 786 [2009], lv denied 13 N.Y.3d 751 [2009]; see People v Ligon, 66 A.D.3d 516, 517 [2009], lv denied 14 N.Y.3d 889 [2010]; People v Pines, 298 A.D.2d 179, 180 [2002], lv denied 99 N.Y.2d 562 [2002]). In any event, even assuming such material existed, "nonwillful, negligent loss or destruction of Rosario material does not mandate a sanction unless the defendant establishes prejudice"(People v Martinez, 22 N.Y.3d 551, 567 [2014]). Here, defendant depends on a series of improbable events to create the prospect of prejudice, which is insufficient to warrant a sanction (id. at 567-568).
Defendant also failed to demonstrate that he suffered any prejudice from the delay in disclosure of certain evidence, including the prosecutor's late disclosure of the complainant's criminal history and subsequent refusal to correct purportedly misleading testimony. The prosecutor explained the unintentional delay in producing the victim's criminal record and the material was available for use at trial upon its disclosure and was, in fact, used by the defendant during cross-examination (see People v Jingzhi Li, 104 A.D.3d 704, 705 [2013], lv denied 21 N.Y.3d 1005 [2013]; see also People v Smalls, 145 A.D.3d 802 [2016], lv denied 29 N.Y.3d 952 [2017]).
All concur