| People v Saxton |
| 2012 NY Slip Op 02347 [93 AD3d 1077] |
| March 29, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Richard T.Saxton, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Egan Jr., J. Appeals (1) from a decision of the County Court of Saratoga County(McKeighan, J.), dated December 9, 2010, which denied defendant's motion to stay theimposition of his sentence of imprisonment, and (2) by permission, from an order of said court,entered January 31, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate thejudgment of conviction, without a hearing.
Defendant, an officer in an Internet start-up company known as World Media, Inc., wascharged in a nine-count indictment with—insofar as is relevant here—falsifyingbusiness records in the first degree (count 3), failure to pay benefits (count 5) and criminalcontempt in the second degree (count 8). Following a jury trial, defendant was convicted of thosecounts and sentenced to, among other things, six months in jail.[FN1]Upon appeal, this Court dismissed count 5 and remitted the matter for a new trial as to count 8and the imposition of the previously imposed sentence as to count 3 (75 AD3d 755 [2010], lvdenied 15 NY3d 924 [2010]).[FN2]In the interim, [*2]defendant sought various records from theDepartment of Taxation and Finance pursuant to the Freedom of Information Law (seePublic Officers Law § 86 et seq.) and, following receipt thereof, moved pursuant toCPL 440.10 to vacate the judgment of conviction based upon newly discovered evidence. Whendefendant appeared in County Court to begin serving his sentence, defense counsel requested anadjournment—citing defendant's various health concerns. County Court denied thatrequest and, thereafter, also denied defendant's CPL article 440 motion without a hearing. Theseappeals by defendant ensued.[FN3]
To the extent that defendant purports to appeal from County Court's denial of his request toadjourn the start of his sentence, we note that County Court's bench decision was not reduced to awritten order. No appeal lies from an oral decision (cf. People v Elmer, 84 AD3d 1593, 1593 [2011], lv granted17 NY3d 903 [2011]; People vHerne, 84 AD3d 1589, 1590 [2011]) and, in any event, the denial of counsel's request isnot appealable (see CPL 450.10, 450.15). Notably, we did not remit this matter for aresentencing, and we previously rejected defendant's assertion that the sentence imposed washarsh and excessive (75 AD3d at 760). Accordingly, defendant's appeal in this regard isdismissed.
As for defendant's CPL 440.10 motion, we cannot say that County Court abused itsdiscretion in denying this application without a hearing. The crux of defendant's argument on thispoint is that the People violated Brady and/or Rosario by failing to disclose acertain computer "screen shot," as well as the identity of the investigator who authored the"World Media Overview" document for the Department of Taxation and Finance.[FN4]The screen shot in question provides as follows: "MR. SAXTON, LOOKING TO FILED ANAMENDED RAN FOR THE 12/06 WH TAX PER; ARRANGEMENTS TO PAY BALANCEDUE ON PAYMENT SCHEDULE. ADVSD REP I WILL CASE. TP CAN BE REACHED AT[ ]."
Assuming, without deciding, that this document was specifically requested by the defense,thus subjecting it to the less stringent "reasonable possibility that it would have changed theresult of the proceedings" standard (People v Fuentes, 12 NY3d 259, 263 [2009] [internal quotationmarks omitted]; see People vO'Halloran, 77 AD3d 1169, 1169 [2010], lv denied 15 NY3d 954 [2010]), wenonetheless fail to see how the subject screen shot qualifies as exculpatory or impeachingevidence that was material to the defense—all necessary components of a Bradyviolation (see People v Fuentes, 12 NY3d at 263; People v Newland, 83 AD3d 1202, 1204 [2011], lv denied17 NY3d 798 [2011]; People vAuleta, 82 AD3d 1417, 1420 [2011], lv denied 17 NY3d 813 [2011]). Contraryto defendant's assertion, his subsequent desire or plan to file an amended tax return in no wayspeaks to—much less negates—his intent at the time that the underlying businessentries were made. We therefore conclude that there is no reasonable possibility that disclosureof this document would have altered the outcome of defendant's trial (see People vFuentes, 12 NY3d at 259-260; People v Smith, 85 AD3d 1297, 1299 [2011]).[*3]
Defendant's claimed Rosario violation is equallylacking in merit. Defendant does not dispute that he was provided with a copy of the documententitled "World Media Overview" prior to trial; rather, he contends that counsel'scross-examination of the People's witnesses would have been enhanced by knowing the authorthereof. To the extent that defendant's argument in this regard was not considered and rejected onhis direct appeal,[FN5]we conclude that there is no reasonable possibility that the alleged violation contributed to theverdict (see People v Jackson, 78 NY2d 638, 649 [1991]). Defendant's remainingcontentions, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Peters, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the appeal from thedecision dated December 9, 2010 is dismissed. Ordered that the order entered January 31, 2011 isaffirmed, and matter remitted to the County Court of Saratoga County for further proceedingspursuant to CPL 460.50 (5).
Footnote 1: Defendant was released on bailpending his direct appeal.
Footnote 2: The retrial as to count 8apparently remains pending.
Footnote 3: Again, defendant was releasedon bail pending appeal.
Footnote 4: Defendant initially raised asimilar claim with respect to a third document but, as he has not briefed that alleged error onappeal, we deem any issue in this regard to be abandoned (see People v Halliard, 20AD3d 674, 679 n 3 [2005], lv denied 5 NY3d 853 [2005]).
Footnote 5: Defendant acknowledges that,when this matter was last before us, he "generally claimed that the People violated theirRosario obligation when they did not disclose the identities of witnesses of some of therecords produced"—an argument that this Court soundly rejected (75 AD3d at 759).