Opinion
2011-10-18
The PEOPLE of the State of New York, Respondent,v.Jasiri WALLOE, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Ropes & Gray, LLP, New York (Irina Vasilchenko of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Ropes & Gray, LLP, New York (Irina Vasilchenko of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered on May 30, 2008, convicting defendant, after a jury trial, of sexual abuse in the first degree (six counts) and criminal possession of stolen property in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of 14 years, unanimously affirmed.
The People did not violate their disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963], and defendant is not entitled to reversal on the ground that the prosecution failed to acquire an allegedly exculpatory surveillance tape possessed by a private party. The tape was in the exclusive possession of a bar, and it was never in the People's possession or control. Therefore, whether exculpatory or not, it did not constitute Brady material ( see People v. Brock, 246 A.D.2d 406, 667 N.Y.S.2d 730 [1998], lv. denied, 91 N.Y.2d 940, 671 N.Y.S.2d 720, 694 N.E.2d 889 [1998] ). Although a police officer viewed the tape and requested a copy, he did not thereby constructively possess the tape, which was erased by the bar. Temporary access is not necessarily the equivalent of possession for Brady purposes ( see People v. Hayes, 17 N.Y.3d 46, 50–52, 926 N.Y.S.2d 382, 950 N.E.2d 118 [2011] [no Brady violation where police failed to interview witnesses after overhearing them make potentially exculpatory statements] ). Furthermore, the officer testified as to his recollection of the contents of the tape, and there is no reason to believe it contained anything exculpatory. At most, it depicted defendant and the victim at a time and place not likely to have a bearing on the victim's intoxication at the time of the crime. We have considered and rejected defendant's remaining Brady-related arguments.
The court properly denied defendant's request for a missing witness instruction. The People established that the witness was unavailable despite reasonably diligent efforts to locate him ( see e.g. People v. Skaar, 225 A.D.2d 824, 824–825, 638 N.Y.S.2d 846 [1996], lv. denied 88 N.Y.2d 854, 644 N.Y.S.2d 700, 667 N.E.2d 350 [1996] ). Furthermore, the witness was not under the People's control for purposes of a missing witness instruction. We do not find the sentence to be excessive.
Defendant's remaining claim is unpreserved and we decline to review it in the interest of justice.