| People v Thompson |
| 2008 NY Slip Op 07164 [54 AD3d 975] |
| September 23, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Garnell Thompson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort,and Lori Glachman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.),rendered November 15, 2005, convicting him of murder in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
To the extent that the defendant contends that the verdict was legally insufficient because thetestimony of two police detectives was incredible as a matter of law (see People v Gruttola,43 NY2d 116, 122 [1977]), that contention is unpreserved for appellate review as it was notraised before the Supreme Court (see CPL 470.05 [2]; People v Gray, 86 NY2d10, 19 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient toestablish the defendant's guilt of murder in the second degree beyond a reasonable doubt.Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant contends that he was denied his due process right to a fair trial, specifically,that he was prevented from presenting a defense, by the prosecution's delayed disclosure ofBrady material (see Brady v Maryland, 373 US 83 [1963]) indicating thatsomeone other than the defendant killed the victim. To warrant reversal based on a prosecutor'sfailure to disclose Brady material that was specifically requested by a defendant, it mustbe shown that there is a reasonable possibility that the failure to disclose the exculpatory materialcontributed to the verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). Here, there wastestimony regarding threats made by the defendant to the victim, eyewitness testimony placingthe defendant at the scene of the shooting, and corroboration of the clothing the defendant waswearing on the day of the shooting. Accordingly, there was no reasonable possibility that had theBrady material been disclosed to the defense, the result would have been different. To theextent that the defendant asserted that the Brady material could have been used to attackthe thoroughness of the prosecution's case, that contention was not raised before the trial courtand, thus, it is unpreserved for appellate review.
The defendant's contention that the court unduly interfered with the proceedings is withoutmerit. The court's minimal questioning of a prosecution witness did not deprive the defendant ofhis right to a fair trial (cf. People v Yut Wai Tom, 53 NY2d 44, 58 [1981]; People vMees, 47 NY2d 997 [1979] [trial judge in both cases asked more than 1,300 questions]).
To the extent that the court's questioning elicited hearsay testimony, any error was harmlessas there was overwhelming evidence of the defendant's guilt and no significant probability thatthe error contributed to his conviction (see People v Crimmins, 36 NY2d 230, 241-242[1975]).
The defendant contends that the prosecutor knowingly presented false testimony throughthree witnesses and made summation arguments based upon this evidence. These contentions areunpreserved for appellate review and, in any event, without merit.
The defendant's remaining contentions that he was denied due process through the trialcourt's failure to dismiss the intentional murder count against him after dismissing theweapons-related charges, that he was denied a fair trial by the prosecutor's introduction ofhearsay testimony, and that the prosecution committed a Brady violation by notinforming him, prior to the Wade hearing (see United States v Wade, 388 US 218[1967]), that one of its witnesses provided inaccurate information, are unpreserved as they werenot raised before the Supreme Court (see CPL 470.05 [2]) and, in any event, withoutmerit. Lifson, J.P., Ritter, Dillon and Leventhal, JJ., concur.