The court acknowledged that most states find disqualification is not "automatic" in similar circumstances. It reasoned, though, that "`[g]iven the need to protect against the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight,'" Deputy State's Attorney Malgeri should be disqualified. (quoting People v. Tessitore, 577 N.Y.S.2d 680, 682 (App.Div. 1991). The court then imputed the disqualification to the entire OCSA because various attorneys in the office had appeared in court during the course of the prosecution of both defendant's and the co-defendant's cases, which lasted more than six months.
Similarly, a New York appeals court pointed to "the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight," in disqualifying an attorney who appeared for the prosecution at sentencing because that lawyer had previously represented a codefendant in the same matter. People v. Tessitore, 178 A.D.2d 763, 577 N.Y.S.2d 680, 682 (1991) (quotation omitted) (remanding case for resentencing).¶ 27. These considerations may arise in a number of contexts, but are particularly significant in abuse-and-neglect proceedings.
Under the particular circumstances of this case, in which evidence was presented suggesting that Vecchione was directly involved in the defendant's prosecution after having represented his accomplice in the charged crime (cf. People v. English, 88 N.Y.2d at 33–34, 643 N.Y.S.2d 16, 665 N.E.2d 1056 ; People v. Dennis, 141 A.D.3d 730, 732, 37 N.Y.S.3d 276 ), questions of fact existed as to whether the defendant suffered "actual prejudice or a substantial risk of an abused confidence" so as to warrant vacatur of his conviction ( People v. English, 88 N.Y.2d at 34, 643 N.Y.S.2d 16, 665 N.E.2d 1056 ; seePeople v. Tessitore, 178 A.D.2d 763, 764, 577 N.Y.S.2d 680 ). Furthermore, contrary to the Supreme Court's conclusion, we cannot say on this record that the defendant's contention was subject to the discretionary procedural bar set forth in CPL 440.10(3)(c).
Where the People fail to disclose such evidence and where, as here, the defendant has made a specific request for such materials, reversal is required "if there is a `reasonable possibility' that, had that material been disclosed, the result would have been different" ( People v Bond, 95 NY2d 840, 843; see People v Vilardi, 76 NY2d 67, 77; People v McBean, 32 AD3d 549, 551, lv denied 7 NY3d 927). However, even where such evidence is not disclosed until after trial begins, such an error will not require reversal as long as the defense was afforded a meaningful opportunity to use it to cross-examine the People's witnesses or as evidence-in-chief ( see People v Cortijo, 70 NY2d 868, 870; People v Swansbrough, 22 AD3d 877, 879; People v Monroe, 17 AD3d 863, 864; People v Tessitore, 178 AD2d 763, 764, lv denied 79 NY2d 1008). Here, the record is clear that the People failed to disclose numerous Rosario and Brady materials until after their last witness testified and those materials could have been used to challenge the credibility of crucial prosecution witnesses.
Defendant is not entitled to a reversal despite the People's Brady violation. The subject material was Brady material because it affected the credibility of a key prosecution witness, and failure to disclose it constituted a Brady violation ( see People v. Baxley, 84 NY2d 208, 213; People v. Hawes, 298 AD2d 706, 708, lv denied 99 NY2d 582). Defendant was given a meaningful opportunity to use the exculpatory information, however, when County Court permitted the defense to recall the prosecution witness immediately prior to summations for the purpose of impeachment ( see People v. Cortijo, 70 NY2d 868, 870; People v. Johnson, 303 AD2d 208, 208-209, lv denied 100 NY2d 595; People v. Tessitore, 178 AD2d 763, 764, lv denied 79 NY2d 1008). This procedure placed defendant in an arguably better position in that the final proof submitted to the jury was testimony that cast doubt upon the character of the chief prosecution witness.
We agree that the evidence is clearly exculpatory and must be disclosed since it supports defendant's theory that the victim was not raped, but we do not find either the conduct of the prosecution or County Court to have deprived defendant of a fair trial. As we have repeatedly held, "[t]he failure to turn over Brady material does not constitute reversible error where the defendant `is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his case'" (People v. Tessitore, 178 A.D.2d 763, 764,lv denied 79 N.Y.2d 1008, quoting People v. Cortijo, 70 N.Y.2d 868, 870). With the delay in disclosure failing to cause substantial prejudice to defendant, we find no reason to disturb County Court's determination (see People v. Ward, 282 A.D.2d 819, lv denied 96 N.Y.2d 942). As to defendant's challenge to the testimony elicited from Norman Chapin, a licensed physician who opined that, based upon the victim's hospital records and photographs taken after the sexual encounter, the bruises and abrasions sustained by her were consistent with the application of force, we agree that such testimony is not admissible to prove that a sexual assault took place, but is permitted if it can "`clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror'" (People v. Bennett, 79 N.Y.2d 464, 473, quoting De Long v. County of Erie, 60 N.Y.2d 296, 307).
However, these statements were first turned over to the defense as Rosario material on the Friday before the Monday start of the April 1998 trial. While the People had an unquestionable duty to disclose exculpatory material in their control, with regard to the first statement, defendant's right to a fair trial was not compromised by the delayed disclosure as defense counsel was given a meaningful opportunity to use the purportedly exculpatory statement to cross-examine victim 1 or as evidence at trial (see,People v. Cortijo, 70 N.Y.2d 868, 870; People v. Brown, 67 N.Y.2d 555, 559, cert denied 479 U.S. 1093; People v. Demand, 268 A.D.2d 901, 902-903; [Jan. 27, 2000], slip opn pp 3-4;People v. Tessitore, 178 A.D.2d 763, 764,lv denied 79 N.Y.2d 1008). With regard to the second statement, defendant claims on appeal that he was unable to locate Aldrich to call him to testify to refute the victim's testimony.
On the second point, defendant claims that he is entitled to a new trial based upon the People's failure to timely disclose Mohamed's oral statement and his written statement that after he heard gunshots, one of the people he observed fleeing the scene of the fight in the Ford Tempo had a gun. While these statements undoubtedly qualify as exculpatory material — in that they support defendant's theory that someone other than him, namely the Youngs, possessed a gun — and the prosecution had a duty to disclose them, the timing of their disclosure did not deprive defendant of a fair trial (see, People v. Cortijo, 70 N.Y.2d 868, 869-870; People v. Tessitore, 178 A.D.2d 763, 764, lv denied 79 N.Y.2d 1008;see also, Brady v. Maryland, 373 U.S. 83). Although the People did not provide the written statement to the defense until August 1996, this was nonetheless nearly five months prior to trial.
Moreover, the prosecutor at no time misrepresented the nature of the, actions taken on the witness's behalf, nor did he — as defendant urges — allow such a misstatement by the witness to go uncorrected ( compare, People v. Novoa, 70 N.Y.2d 490, 498; People v. Cwikla, supra, at 442). In these circumstances the mere fact that defendant was not provided with a copy of the actual letter received by the Parole Board, prior to trial, does not mandate reversal of his conviction ( see, People v. Cortijo, 70 N.Y.2d 868, 870; People v. Tessitore, 178 A.D.2d 763, 764, lv denied 79 N.Y.2d 1008; cf., People v. Sibadan, 240 A.D.2d 30, 35, lv denied 92 N.Y.2d 861). As for defendant's contentions that he was improperly denied the services of a competent interpreter at his arraignment or during the pretrial preparation period, and that the interpreter appointed for the trial was unsatisfactory due to her inexperience and inability to communicate in the particular dialects with which defendant was most familiar, his failure to raise these issues at any time during the trial, despite having been afforded numerous opportunities to do so, precludes their consideration at this juncture ( see, CPL 440.10 1131 [a]; People v. Ramos, 26 N.Y.2d 272, 274; People v. Perez, 198 A.D.2d 446, 447, lv denied 82 N.Y.2d 929; People v. Hatzipavlou, 175 A.D.2d 969, lv denied 79 N.Y.2d 827). And, as County Court noted, defendant's related claim, that he received ineffective assistance of counsel because his trial attorneys failed to demand that the interpreter be replaced,
Defendant also argues that he was impermissibly prejudiced by the People's failure to disclose, prior to trial, the details of the consideration received by one of the informants in exchange for his cooperation and testimony. This information was, however, fully revealed during the witness's direct examination, and was probed in detail by the defense attorney on cross-examination. Defendant's claim of prejudice is thus unavailing (see, People v Cortijo, 70 N.Y.2d 868, 870; People v. Tessitore, 178 A.D.2d 763, 764, lv denied 79 N.Y.2d 1008). The only other issue raised by defendant that warrants comment is the assertion that it was error for County Court to permit the People to introduce evidence of a conversation between defendant and one of the informants regarding a proposed future drug sale that was, apparently, never consummated.