| People v Dawkins |
| 2007 NY Slip Op 06755 [43 AD3d 705] |
| September 18, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Lawrence Dawkins, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (William C. Donnino, J.), rendered March 1, 2000,convicting defendant, after a jury trial, of murder in the first degree, and sentencing him to a termof life without parole, and order, same court (George Villegas, J.), entered on or about May 19,2005, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimouslyaffirmed.
The motion court properly denied those portions of defendant's CPL 440.10 motion assertingviolations of Brady v Maryland (373 US 83 [1963]). Years after defendant's trial, hisinvestigators obtained an affidavit from the sole identifying witness. Although the witness didnot waver from her incrimination of defendant, she stated in this affidavit that the police who hadquestioned her after the incident told her that there was fingerprint evidence connecting her to thecrime, and that they would charge her as an "accessory" if she did not cooperate. It should benoted that neither the trial testimony nor the submissions before the motion court contain anyevidence implicating this witness. Even if we were to assume that the police actually made such athreat, that this constituted impeachment material required by Brady to be disclosed bythe prosecution, and that knowledge of this threat is imputed to the prosecution by virtue of itsrelationship to the police, we would find that defendant has not established that he wasprejudiced by the nondisclosure. The witness gave credible testimony at trial, and the allegedthreat would have simply explained the circumstances that led her to cooperate with theauthorities, rather than furnishing a motive to incriminate anyone falsely. Accordingly,we find that there was not even a reasonable possibility that the failure to disclose the allegedthreat contributed to the verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]).
There is no merit to the other prong of defendant's Brady claim, in which he assertsthat the prosecutor failed to disclose that the witness had been extended leniency with respect toher unrelated drug case in exchange for her testimony. At trial, the witness testified that she didnot receive any leniency, and she reiterated this in the affidavit she later gave to defendant'sinvestigators. There is no evidence to the contrary, and defendant's claim rests on speculation.There was evidence before the motion court concerning the District Attorney's general practicesin disposing of [*2]street-level drug cases involving defendantsfacing incarceration in other jurisdictions, and the record supports the conclusion that thiswitness received what would be an unremarkable disposition for a person in her situation whowas not assisting the prosecution. Furthermore, we reject defendant's assertion that thetrial prosecutor tacitly encouraged the prosecutor handling the witness's drug case to extendleniency, and that the trial prosecutor maintained deliberate ignorance of such leniency. Thisclaim is based entirely on defendant's speculative reading of a statement made by this prosecutorduring the trial.
Defendant's challenges to the prosecutor's summation and the court's charge are unpreservedand we decline to review them in the interest of justice. Were we to review these claims, wewould find nothing to warrant reversal. Similarly, we find that defendant was not prejudiced byhis attorney's failure to raise these issues at trial (see People v Caban, 5 NY3d 143, 155-156 [2005]; People vHobot, 84 NY2d 1021, 1024 [1995]; compare People v Turner, 5 NY3d 476 [2005]). We also rejectdefendant's claim that trial counsel rendered ineffective assistance with respect to theabove-discussed "leniency" issue. Given disclaimers of any leniency made by both the witnessand the prosecutor, and the lack of any other evidence of leniency, it was reasonable for trialcounsel to conclude that there was no point in pursuing the matter. Defendant's remainingineffective assistance arguments are without merit.
We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Buckley,Catterson, Malone and Kavanagh, JJ.