| People v Lundy |
| 2008 NY Slip Op 00746 [48 AD3d 1046] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy P.Lundy, Appellant. |
—[*1]
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedMarch 24, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial ofmurder in the second degree (Penal Law § 125.25 [1]). Contrary to the contention ofdefendant, County Court did not abuse its discretion in denying his motion for a mistrial.Defendant's assertion that the jurors were improperly influenced by the circumstancessurrounding the dismissal of a sworn juror is not supported by the record (see generally People v Hunt, 39 AD3d961, 963 [2007]; People vDevison, 38 AD3d 203, 205 [2007], lv denied 9 NY3d 842 [2007]), nor is thereany indication on the record before us that the court should have conducted individual inquiriesof the jurors concerning the possibility of the alleged improper influence (see Devison,38 AD3d at 205). Contrary to the further contention of defendant, the court properly refused toorder the People to provide the criminal history reports of certain prosecution witnessesinasmuch as the record establishes that the People were unaware of the criminal histories of thosewitnesses and thus were not required to furnish such reports (see CPL 240.45 [1] [b]; see also People v Carter, 38 AD3d1291, 1292 [2007]; People v Graham, 289 AD2d 417 [2001], lv denied 97NY2d 754 [2002]).
Defendant failed to preserve for our review his contention that the People failed to disclosealleged Brady material (seePeople v Little, 23 AD3d 1117, 1118 [2005], lv denied 6 NY3d 777 [2006];People v Martinez, 298 AD2d 897, 898 [2002], lv denied 98 NY2d 769 [2002],cert denied 538 US 963 [2003], reh denied 539 US 911 [2003]) and, in any event,that contention lacks merit. The information at issue, i.e., the fact that a witness was testifyingpursuant to a material witness order, does not constitute Brady material because it is notexculpatory (see generally People v Arhin, 203 AD2d 62, 63 [1994], lv denied 83NY2d 908 [1994]). The court properly charged the jury concerning accessorial liability becausethe evidence established that defendant, while acting in concert with another, intentionally causedthe death of the victim (see People v Gordon, 277 AD2d 1053 [2000], lv denied96 NY2d 759 [2001]; see generally People v Rosario, 277 AD2d 943, 944 [2000],affd 96 NY2d 857 [2001]), and the [*2]sentence is notunduly harsh or severe. We have considered defendant's remaining contentions and conclude thatthey are without merit. Present—Hurlbutt, J.P., Martoche, Smith, Lunn and Peradotto, JJ.