| People v O'Halloran |
| 2008 NY Slip Op 01658 [48 AD3d 978] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eugene D.O'Halloran, Sr., Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered April 3, 2007, upon a verdict convicting defendant of the crimes of sodomy in the firstdegree, sodomy in the second degree and endangering the welfare of a child.
While being questioned about whether he had sexual contact with a minor female, the then18-year-old victim told police that when he was less than 14 years old, he had been sexuallymolested by defendant. Defendant was ultimately charged in a 12-count indictment with a varietyof sexual offenses against the victim. Following a jury trial, at which the defense argued that thevictim's testimony was fabricated to obtain a favorable plea bargain in his own case, defendantwas convicted of sodomy in the first degree, sodomy in the second degree and endangering thewelfare of a child. Later, asserting that there was newly discovered evidence that the victim hadfalsely accused defendant and the People improperly withheld recorded statements of the victim,defendant moved to set aside the verdict pursuant to CPL 330.30. Finding that the new evidencewas insufficient and there had been no violation of the People's obligations to disclose underRosario and Brady, County Court denied the motion.
Defendant now appeals, arguing only that County Court should have granted his motion toset aside the verdict because the People failed to disclose Brady material and that he was[*2]denied the effective assistance of counsel at trial. Initially,there is no dispute that the People withheld statements made by the victim about the chargesagainst him, including one recorded on videotape. The withholding of those statements wouldconstitute a Brady violation if they could have assisted the defense in impeaching thevictim's credibility (see e.g. People v Hawes, 298 AD2d 706, 708 [2002], lvdenied 99 NY2d 582 [2003]). If so, we would then consider whether the violation wasmaterial. Since defendant made only a generalized demand for disclosure, the materiality of theviolation would depend upon whether there is a reasonable probability that the result at trialwould have been different if the statements had been disclosed (see id.). The withheldrecorded statements, however, are not included in the record before us despite their having beenreviewed by County Court. As a result, we cannot review the court's finding that the informationcontained therein was known to the defense before trial or would not have aided the defense.Since it was defendant's obligation to prepare a complete record for appeal (see People vOlivo, 52 NY2d 309, 320 [1981]; People v Johnson, 292 AD2d 284, 285 [2002],lv denied 98 NY2d 698 [2002]) and there is no evidence that he sought to have thewithheld statements included in the record, his failure to do so renders the record insufficient formeaningful appellate review (cf. People v Janota, 181 AD2d 932, 934-935 [1992]).
Nor are we persuaded by defendant's claim that he was deprived of meaningfulrepresentation by the cumulative effect of the omissions of his trial counsel. Specifically,defendant cites counsel's failures to investigate the witnesses who gave affidavits on his motionto set the verdict aside, to effectively impeach the victim based upon what had been disclosed bythe People and to object to some of the prosecutor's comments during closing. Since defendant'scounsel did call the jury's attention to the victim's prior bad acts, his potential motive to fabricateand his having received no jail time for his sexual offense, we are persuaded that defendantreceived meaningful representation under all the circumstances (see People v Baldi, 54NY2d 137, 147 [1981]; People v Brockway, 277 AD2d 482, 487 [2000]; People vVenditto, 171 AD2d 952, 953 [1991], lv denied 78 NY2d 1130 [1991]).
Mercure, J.P., Peters, Carpinello and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.