| People v Bayard |
| 2009 NY Slip Op 04722 [63 AD3d 481] |
| June 9, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Tashiem Bayard, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Karen Schlossberg of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert Straus, J.), rendered January 21, 2005,convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencinghim to an aggregate term of seven years, and judgment, same court and Justice, renderedFebruary 2, 2005, convicting defendant, upon his plea of guilty, of robbery in the first andsecond degrees, and sentencing him to a concurrent aggregate term of seven years, unanimouslyaffirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning identification and credibility.
The court properly declined to declare a mistrial, or to receive a hearsay document inevidence, on the ground that the People had violated their disclosure obligations under Bradyv Maryland (373 US 83 [1963]) or People v Rosario (9 NY2d 286 [1961]). Twoweeks before trial, the People disclosed a police omniform system complaint report, containing asynopsis of the robbery and descriptions of the robbers. The report was prepared by an identifiedpolice administrative aide based entirely on information provided by an unidentified officer whowas not one of the officers who testified at trial. The robbery was witnessed by three persons,only one of whom was available to testify at trial, and the report does not indicate which witnessprovided the underlying information, or whether the report is a composite of informationreceived from two or three witnesses. The report contains a slightly different narrative of thecrime, and a more detailed description of the robbers, than those found in the victim's trialtestimony.
Defendant argues that by neglecting to at least preserve the identity of the officer whointerviewed the witness or witnesses who provided the information in the report, the police andprosecution failed to disclose exculpatory information in a usable form. However, we find nobasis for reversal. The information was not exculpatory; defendant was, in any event, able tomake effective use of it in the form in which he received it; and neither the police department'sfailure to preserve the [*2]identity of the author, or the court'srefusal to receive the report in evidence caused defendant any prejudice or affected the outcomeof the trial.
We need not decide whether, in the case of genuinely exculpatory evidence in the People'spossession, the People's failure to memorialize the source of the evidence can constitute aBrady violation, or what would be an appropriate remedy (cf. United States vRodriguez, 496 F3d 221, 225-228 [2d Cir 2007]). Here, the information in the report hadlittle or no impeachment or other exculpatory value, regardless of which witness or witnessesprovided the underlying information. Furthermore, the prosecution disclosed the report in time togive defendant a reasonable opportunity to investigate its authorship. Finally, the court gavedefendant extensive leeway to use this report in cross-examining the victim and the arrestingdetective, and defendant was able to reveal the report's contents to the jury (see People vFortunato, 191 AD2d 221, 222 [1993], lv denied 81 NY2d 1013 [1993]). As it couldnot be determined which witness or witnesses provided the underlying information, the hearsayreport was insufficiently reliable to be received in evidence as a prior inconsistent statement ofthe victim (see id.), or under any other theory, and its exclusion did not violatedefendant's right to present a defense. Concur—Mazzarelli, J.P., Sweeny, DeGrasse,Freedman and Abdus-Salaam, JJ.