Opinion
KA 01-00777
May 2, 2003.
Appeal from a judgment of Supreme Court, Onondaga County (Brunetti, J.), entered November 17, 2000, convicting defendant after a jury trial of, inter alia, murder in the second degree (two counts).
BIANCO LAW OFFICES, SYRACUSE (RANDI JUDA BIANCO OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DAVID A. ROTHSCHILD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
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 arson in the first degree (Penal Law 150.20), criminal impersonation in the second degree (190.25 [1]) and two counts of murder in the second degree (125.25 [1], [3]). We reject the contention of defendant that Supreme Court erred in denying his request for an adverse inference charge with respect to certain items of property. Those items were not "`gathered by the prosecution or its agent'" ( People v. James, 93 N.Y.2d 620, 644 [emphasis omitted]) and there is no indication that the People otherwise had those items "within their possession and control" ( People v. O'Brien, 270 A.D.2d 433, 434, lv denied 95 N.Y.2d 801; see People v. Carpenter, 187 A.D.2d 519, 522, lv denied 81 N.Y.2d 838, 1012; see also People v. Cannonier, 236 A.D.2d 619, lv denied 89 N.Y.2d 1033).
Defendant further contends that reversal is warranted based on a Brady violation, i.e., the People's failure to disclose a plea agreement between federal authorities and a key prosecution witness ( see People v. Sibadan, 240 A.D.2d 30, 34, lv denied 92 N.Y.2d 861). Even assuming, arguendo, that there was a Brady violation in this case, we conclude that reversal is not required because there is no reasonable possibility that the failure to disclose the plea agreement contributed to the verdict ( see People v. Vilardi, 76 N.Y.2d 67, 77). The evidence of defendant's guilt, without consideration of that witness's testimony, is overwhelming; indeed, another prosecution witness also testified to defendant's admissions of guilt in setting the fire that caused the victim's death. Defendant has not preserved for our review his contention that the testimony of the Medical Examiner improperly invaded the province of the jury ( see People v Law, 273 A.D.2d 897, 898, lv denied 95 N.Y.2d 965), nor has he preserved for our review his contention that the Medical Examiner's opinion was impermissibly based on hearsay ( see People v. Shaw, 176 A.D.2d 832, 832-833, lv denied 79 N.Y.2d 832). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). The testimony that defendant failed a drug test was properly admitted because it was "relevant on the issue of his motive in committing the offenses charged" ( People v Yanes, 243 A.D.2d 660, 660, lv denied 91 N.Y.2d 883). The general motion to dismiss the murder counts, which was made by defendant at the close of the People's case, did not preserve for our review his present contention concerning the legal sufficiency of the evidence with respect to those counts ( see People v. Gray, 86 N.Y.2d 10, 19). Defendant failed to renew his specific motion to dismiss with respect to the arson count at the close of his case and thus has "waived his challenge to the legal sufficiency of the evidence" with respect to that count ( People v. Hill, 300 A.D.2d 1125, 1126; see generally People v Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678). Finally, we reject the contention of defendant that he was denied a fair trial by the cumulative effect of alleged errors at trial.