| People v Vickio |
| 2008 NY Slip Op 03746 [50 AD3d 1479] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John L.Vickio, Appellant. |
—[*1] John C. Tunney, District Attorney, Bath (Brooks T. Baker of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), renderedAugust 12, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in the thirddegree and grand larceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofburglary in the third degree (Penal Law § 140.20) and grand larceny in the third degree(§ 155.35). Defendant failed to preserve for our review his contention that County Courterred in admitting in evidence a photograph produced from a surveillance videotape, in violationof the best evidence rule (see CPL 470.05 [2]). In any event, there was no violation of thebest evidence rule in this case. Under that rule, "a party may produce a substitute for an original. . . if the absence or unavailability of the original is satisfactorily explained and themishap was innocent" (People v Grasso, 237 AD2d 741, 742 [1997], lv denied 89NY2d 1035 [1997]). Here, a police officer testified at trial that he observed defendant on thesurveillance videotape from a grocery store where he had purchased gasoline and that the imagedepicted in the photograph from the videotape, although smaller than the image in the videotape,was the same as that on the videotape. The police officer further testified that the videotape hadbeen returned to the grocery store. We thus conclude that "the absence or unavailability of theoriginal [was] satisfactorily explained and [that] the mishap was innocent" (id.). Alsocontrary to defendant's contention, there was no Brady violation with respect to thephotograph and the videotape. According to defendant, the photograph taken from the videotapewas exculpatory, because it, inter alia, depicted a codefendant rather than defendant. The recordestablishes that the People discovered the photograph a week before the commencement of thetrial and, although they agreed to an adjournment of the trial at that time, defendant did not wantan adjournment. It is well settled that "a defendant's constitutional right to a fair trial is notviolated when, as here, he is given a meaningful opportunity to use the allegedly exculpatorymaterial to cross-examine the People's witnesses or as evidence during his case" (People vCortijo, 70 NY2d 868, 870 [1987]).
We reject defendant's further contention that the court erred in admitting rebuttaltestimony with respect to statements allegedly made by defendant, following his testimony thathe did not recall a conversation in which he made those statements. "A prosecutor may impeach[*2]the testimony of a defendant through rebuttal testimony. . . [, and a] CPL 710.30 notice is not required where[, as here,] the rebuttaltestimony is offered solely for the purpose of impeachment" (People v Hill, 281 AD2d917, 917-918 [2001], lv denied 96 NY2d 902 [2001]). In view of the fact that, prior tothe People's rebuttal testimony, defendant denied having made those statements, we reject hisfurther contention that the court abused its discretion in refusing to permit him to offersurrebuttal testimony with respect to the statements (see generally CPL 260.30 [7]; People v O'Connor, 21 AD3d1364, 1366 [2005], lv denied 6 NY3d 757 [2005]). Finally, we have reviewed thecontention of defendant that he was denied a fair trial by prosecutorial misconduct duringsummation, and we conclude that "[a]ny improprieties were not so pervasive or egregious as todeprive defendant of a fair trial" (Peoplev Cox, 21 AD3d 1361, 1364, lv denied 6 NY3d 753 [internal quotation marksomitted]). Present—Hurlbutt, J.P., Lunn, Fahey, Peradotto and Pine, JJ.