Opinion
2014-03-28
The PEOPLE of the State of New York, Respondent, v. Burnie DANIELS, Defendant–Appellant.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant.Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of criminal mischief in the third degree (Penal Law § 145.05[2] ) and petit larceny (§ 155.25). Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we reject defendant's contention that the evidence is legally insufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Furthermore, we conclude that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400) and, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we also conclude that defendant's contention that the verdict is against the weight of the evidence lacks merit ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We agree with defendant that County Court erred in allowing the People to elicit testimony that defendant invoked his right to counsel ( see People v. Nicholas, 286 A.D.2d 861, 862, 731 N.Y.S.2d 99,affd.98 N.Y.2d 749, 751 N.Y.S.2d 820, 781 N.E.2d 884;People v. Morrice, 61 A.D.3d 1390, 1391, 877 N.Y.S.2d 547;People v. Hunt, 18 A.D.3d 891, 892, 794 N.Y.S.2d 490), but we conclude that reversal is not required; the error is harmless beyond a reasonable doubt “inasmuch as there is no reasonable possibility that the error[ ] might have contributed to defendant's conviction” ( People v. Capers, 94 A.D.3d 1475, 1476, 942 N.Y.S.2d 731,lv. denied19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764 [internal quotation marks omitted]; see People v. Kithcart, 85 A.D.3d 1558, 1559–1560, 925 N.Y.S.2d 280,lv. denied17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98;see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787). We also reject defendant's contention that he is entitled to a new trial based on a Brady violation. “ ‘[W]hile the People unquestionably have a duty to disclose exculpatory material in their control,’ a defendant's constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material ... as evidence during his case” ( People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349;see People v. Comfort, 60 A.D.3d 1298, 1300, 875 N.Y.S.2d 672,lv. denied12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086;People v. Barney, 295 A.D.2d 1001, 1002, 743 N.Y.S.2d 793,lv. denied98 N.Y.2d 766, 752 N.Y.S.2d 6, 781 N.E.2d 918).
Finally, we reject defendant's contention that he is entitled to a new trial based on an alleged Rosario violation. Even assuming, arguendo, that all of the disputed evidence is Rosario material ( see People v. Turner, 233 A.D.2d 932, 933, 649 N.Y.S.2d 571,lv. denied89 N.Y.2d 1102, 660 N.Y.S.2d 396, 682 N.E.2d 997;People v. Stern, 226 A.D.2d 238, 239–240, 641 N.Y.S.2d 248,lv. denied88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355,reconsideration denied88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346), we conclude that reversal is not warranted here. With respect to the evidence that defendant contends was not timely disclosed, we conclude that defendant failed to make a showing that there is “a reasonable possibilitythat the result at trial would have been different if [that] material[ ] had been timely disclosed” ( People v. Williams, 50 A.D.3d 1177, 1180, 854 N.Y.S.2d 586;seeCPL 240.75). With respect to the evidence disclosed only after trial, we conclude that defendant failed to “show[ ] ‘that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial’ ” ( Williams, 50 A.D.3d at 1179, 854 N.Y.S.2d 586, quoting CPL 240.75).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.