| People v Moore |
| 2007 NY Slip Op 06905 [43 AD3d 1085] |
| September 18, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v MichaelMoore, Respondent. |
—[*1] Barry S. Turner, New York, N.Y., for respondent.
Appeal by the People from an amended order of the Supreme Court, Kings County(Douglass, J.), entered November 16, 2005, which, after a hearing, granted the defendant'smotion pursuant to CPL 440.10 to vacate a judgment of the same court (Bourgeois, J.), renderedNovember 27, 1984, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the amended order is reversed, on the law, the defendant's motion pursuant toCPL 440.10 to vacate the judgment is denied, the judgment is reinstated, and the matter isremitted to the Supreme Court, Kings County, which upon at least two days notice to thedefendant and his attorney, shall promptly direct the defendant to surrender himself to the courtin order that execution of the judgment may resume.
The hearing court erred in granting the defendant's motion pursuant to CPL 440.10 to vacatethe judgment of conviction. One of the People's witnesses at the defendant's trial, John Cortez,was being prosecuted in an unrelated criminal proceeding. The People failed to inform thedefendant of a promise to apprise the Assistant District Attorney prosecuting Cortez of hiscooperation with respect to the defendant's trial (see People v Novoa, 70 NY2d 490,496-497 [1987]). However, the failure to disclose information not specifically requested by thedefense does not warrant vacatur of the judgment of conviction unless there is a "reasonableprobability" that the outcome of the trial was affected by the lack of disclosure (see People vVilardi, 76 NY2d 67, 73-75 [1990]; People v Bryant, 247 AD2d 400, 401 [1998];People v Figueroa, 213 AD2d 669, 669-670 [1995]; People v Nedrick, 166 AD2d725, 727 [1990]). In view of the strong evidence of the defendant's guilt, including the [*2]consistent testimony of four witnesses other than Cortez whoobserved the shooting of the victim or the events which immediately preceded or followed it,there is no reasonable probability that the disclosure of the People's agreement to inform theAssistant District Attorney prosecuting Cortez of Cortez's cooperation would have resulted in thedefendant's acquittal (see People v Figueroa, 213 AD2d 669, 670 [1995]; cf. People vWright, 86 NY2d 591, 596-597 [1995]).
Accordingly, the defendant's motion pursuant to CPL 440.10 to vacate the judgment ofconviction should have been denied. Spolzino, J.P., Skelos, Lifson and Balkin, JJ., concur.