Opinion
KA 99-05467
February 1, 2002.
Appeal from a judgment of Supreme Court, Monroe County (Sirkin, J.), entered June 17, 1999, convicting defendant after a jury trial of robbery in the first degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
BOBBY WARD, DEFENDANT-APPELLANT PRO SE.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (WENDY EVANS LEHMANN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, SCUDDER, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of robbery in the first degree (Penal Law § 160.15). We agree with defendant that the People were required to provide him with a ballistics report concerning the analysis of spent bullet casings found at the scene ( see, CPL 240.20 [c]; see also, People v. Jenkins, 284 A.D.2d 550). We conclude, however, that reversal is not required based on the People's delay in providing him with that report because he was not substantially prejudiced by the delay ( see, People v. Benitez, 221 A.D.2d 965, 966, lv denied 87 N.Y.2d 970). We reject defendant's additional contention that the report constituted Brady material; the information contained in the report was not exculpatory. In any event, even assuming, arguendo, that the report constituted Brady material, we conclude that defendant was provided with the report at a time when he had a meaningful opportunity to use it ( see, People v. Jackson, 281 A.D.2d 906, 907, lv denied 96 N.Y.2d 920). We further conclude that Supreme Court did not abuse its discretion in denying defendant's request for a continuance of an unspecified length after the People provided him with the report. Defendant failed to demonstrate that a continuance would produce evidence that would be material and favorable to the defense ( see, People v. Tillman, 261 A.D.2d 854, 855, lv denied 93 N.Y.2d 980).
The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Contrary to defendant's contention, the fact that the victim has a criminal record did not render his testimony inherently unreliable ( see, People v. Toro, 272 A.D.2d 351, lv denied 95 N.Y.2d 970). The resolution of credibility issues is primarily for the jury, which saw and heard the witnesses ( see, People v. Lawley, 276 A.D.2d 643, lv denied 96 N.Y.2d 736), and we cannot conclude that the jury failed to give the evidence the weight it should be accorded ( see, People v. Bleakley, supra, at 495). Given the violent nature of the crime and defendant's criminal record, we conclude that the sentence is neither unduly harsh nor severe. In his pro se supplemental brief, defendant contends that defense counsel was ineffective for failing to call the codefendant as a witness. The codefendant had been acquitted of all charges stemming from this incident following a separate trial. Because the reasons for defense counsel's decision not to call the codefendant as a witness do not appear in the record, defendant's remedy is a motion pursuant to CPL article 440 ( see, People v. Chiera, 255 A.D.2d 685, 686). From our review of the record, we conclude that defendant received effective assistance of counsel ( see, People v. Baldi, 54 N.Y.2d 137, 147).