Opinion
49
February 14, 2002.
Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered May 15, 1997, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
ALAN GADLIN, for respondent.
JONATHAN E. PICKHARDT pro se, for defendant-appellant.
Before: Williams, J.P., Mazzarelli, Rosenberger, Wallach, Lerner, JJ.
The verdict was not against the weight of the evidence. On the contrary, we find the evidence to be overwhelming. Six witnesses independently inculpated defendant, and there was no evidence of collusion, or even an opportunity for collusion, among these witnesses. Issues of credibility — including the weight to be given to the backgrounds of the People's witnesses, to the fact that most were testifying under cooperation agreements, and to minor inconsistencies in their testimony — were properly considered by the jury, and there is no basis upon which to disturb its determinations.
There was no violation of the People's duty to disclose exculpatory evidence under Brady v. Maryland ( 373 U.S. 83). Shortly after the outset of the trial, the People disclosed reports of a detective's interview with a person who had not witnessed any of the events in question but who claimed to have had a conversation with one of the People's witnesses shortly after the crime, in which the witness had allegedly implicated an individual other than defendant. Defendant received this information in time to use it effectively at trial. His counsel cross-examined prosecution witnesses based on the contents of the reports, called the detective to testify, and, after interviewing the nonwitness following his production by the People, declined to put him on the stand to testify (see, People v. Cortijo, 70 N.Y.2d 868; People v. Brooks, 170 A.D.2d 182,lv denied 77 N.Y.2d 958). Defendant's claim that earlier disclosure might have had an impact on the outcome of the case is purely speculative (see, People v. McKee, 269 A.D.2d 225, lv denied 94 N.Y.2d 950).
The inadvertent destruction of a photograph of a person asserted by defendant to have been a "possible suspect" did not constitute a Brady violation since the photograph had no exculpatory value (see, California v. Trombetta, 467 U.S. 479). The photograph had not been viewed by any witness, and had been selected only by the above-discussed nonwitness, whose claim that he spoke to one of the People's witnesses after the crime was denied by that witness.
To the extent that the court's questioning of a defense witness about an aspect of his testimony may have been improper, such questioning did not deprive defendant of a fair trial. The court's thorough curative instructions, which the jury is presumed to have followed (see, People v. Davis, 58 N.Y.2d 1102, 1104), were sufficient to prevent any prejudice.
We have reviewed the points raised in defendant's supplemental pro se brief and find them to be without merit. First, there is a presumption of regularity in the voir dire process (see, People v. Keen, 252 A.D.2d 278, 281-282, affd 94 N.Y.2d 533). Defendant, who was represented by able counsel both at trial and on this appeal, has not identified any significant gaps in the voir dire minutes recorded by the now-deceased stenographer, in connection with any appealable issue (see, People v. Cosme, 125 A.D.2d 485, 486), nor did he seek a reconstruction hearing, which in any event would have been useless (People v. Sanchez, 75 A.D.2d 918).
Second, defendant was not prejudiced by references to uncharged crimes and illicit drug activity. The victim was alleged to have robbed defendant and other local drug dealers, so the evidence defendant now objects to was properly elicited for the purpose of demonstrating motive and criminal intent (People v. Smith, 179 A.D.2d 597, 598, lv denied 79 N.Y.2d 1008).
Motion seeking leave to file a pro se supplemental brief granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.