| People v Reddick |
| 2007 NY Slip Op 07137 [43 AD3d 1334] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v GeorgeReddick, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedMay 11, 2005. The judgment convicted defendant, upon a jury verdict, of rape in the seconddegree, sexual abuse in the second degree (three counts) and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,rape in the second degree (Penal Law § 130.30 [1]), defendant contends that County Courterred in denying his application for subpoenas duces tecum with respect to the victim's schooland social services records. We reject that contention inasmuch as, at the time of the application,defendant failed to set forth a sufficient "factual predicate to support the contention that thedocuments sought in the subpoena[s] will bear relevant and exculpatory evidence" (People vBagley, 279 AD2d 426, 426 [2001], lv denied 96 NY2d 711 [2001]; see generallyMatter of Constantine v Leto, 157 AD2d 376, 378 [1990], affd for reasons stated 77NY2d 975 [1991]; People v Gissendanner, 48 NY2d 543, 551 [1979]). Here, althoughdefense counsel contended that the records might contain evidence of a prior false accusation bythe victim against defendant, "the application was supported solely by speculation in an attorney's[letter], without even an indication of the basis for that speculation. Accordingly, [the c]ourt didnot abuse its discretion in denying [that part of] the application" (People v Bush, 14 AD3d 804, 805[2005], lv denied 4 NY3d 852 [2005]). The other contentions raised by defense counselin the application concerned information that would be used to impeach the victim's generalcredibility and thus the remainder of the application was also properly denied (see e.g. Peoplev Radtke, 219 AD2d 739 [1995], lv denied 87 NY2d 924 [1996]; People vScott, 212 AD2d 477 [1995], lv denied 85 NY2d 980 [1995]; cf. People vThurston, 209 AD2d 976 [1994], lv denied 85 NY2d 915 [1995]; see generallyGissendanner, 48 NY2d at 548). Contrary to defendant's further contention, the victim'ssocial services records were not within the custody or control of the People and thus do notconstitute Rosario or Brady material (see Matter of Sabol v People, 203AD2d 369 [1994]; see generally People v Tucker, 171 Misc 2d 1, 10 [1996]).
We further conclude that the verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). "Where, as here, witness credibilityis of [*2]paramount importance to the determination of guilt orinnocence, the appellate court must give '[g]reat deference . . . [to the] fact-finder'sopportunity to view the witnesses, hear the testimony and observe demeanor' " (People v Harris, 15 AD3d 966,967 [2005], lv denied 4 NY3d 831 [2005], quoting Bleakley, 69 NY2d at 495; see People v Catlin, 41 AD3d1199 [2007]). We see no basis to disturb the jury's determination of credibility.
To the extent that defendant contends that he was denied a fair trial based on the prosecutor'sfailure to disclose exculpatory evidence, we conclude that defendant waived that contention bywithdrawing his CPL 330.30 motion raising that contention (see People v Abney, 10 AD3d 617 [2004], lv denied 4NY3d 760 [2005]; People v Hollis, 309 AD2d 764, 765-766 [2003], lv dismissed1 NY3d 597 [2004]; People v Baez, 290 AD2d 372 [2002], lv denied 98 NY2d635 [2002]). Certain of the remaining instances of prosecutorial misconduct are not preserved forour review (see People v Harris, 1AD3d 881, 882 [2003], lv denied 2 NY3d 740 [2004]) and, in any event, theremaining instances, including those that are preserved for our review, do not amount to conductthat was "so egregious or prejudicial as to deny defendant his right to a fair trial" (People vDexter, 259 AD2d 952, 954 [1999], affd 94 NY2d 847 [1999]; cf. People vMott, 94 AD2d 415, 418 [1983]).
Finally, we conclude that, despite defense counsel's initial failure to demand exculpatoryevidence in the omnibus motion, defendant ultimately received meaningful representation(see generally People v Benevento, 91 NY2d 708, 712-713 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]). Present—Gorski, J.P., Smith, Centra, Fahey andPine, JJ.