| People v O'Halloran |
| 2010 NY Slip Op 07616 [77 AD3d 1169] |
| October 28, 2010 |
| 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.
We previously affirmed defendant's judgment of conviction, noting in part that the recordwas insufficient to afford meaningful review of the claimed Brady violation (People v O'Halloran, 48 AD3d978, 979 [2008], lv denied 10 NY3d 868 [2008]). We then granted defendant'ssubsequent motion for a writ of error coram nobis and reinstated the appeal to allow defendant toraise the issue of whether the withholding of statements of the victim—who was the keyprosecution witness—constituted a material Brady violation.
While the failure to disclose information that affects the credibility of a key prosecutionwitness constitutes a Brady violation (see e.g. People v Hawes, 298 AD2d 706,708 [2002], lv denied 99 NY2d 582 [2003]), we cannot agree with defendant's contentionthat the People failed to disclose the victim's written statement in which he admitted to certaincrimes of his own, or that the People's failure to turn over the video recording of the policeinterview of the victim when he made that confession constitutes a material Bradyviolation requiring reversal. Even assuming that defendant's request for any record relating to aprevious arrest, convictions or participation in dangerous, vicious, immoral, or criminal behaviorby the People's witnesses is a specific request (see People v Scott, 88 NY2d 888, 891[1996]; People v Vilardi, 76 NY2d 67, [*2]70-72 [1990];People v Sibadan, 240 AD2d 30, 34 [1998], lv denied 92 NY2d 861 [1998]), weconclude that there is no reasonable possibility that disclosure of the video would have alteredthe outcome of the case (see People vFuentes, 12 NY3d 259, 263-264 [2009]; People v Demand, 268 AD2d 901, 903[2000], lv denied 95 NY2d 795 [2000]; People v Nedrick, 166 AD2d 725, 727[1990], lv denied 77 NY2d 842 [1991]).
The victim's written confession, along with the handwritten notes of the investigator whointerviewed him, were disclosed to the defense as part of the Rosario material deliveredafter jury selection was completed. That, together with the open file disclosure that took placeprior to defendant's request for Brady material, enabled trial counsel to question thevictim about whether he expected leniency for revealing the allegations against defendant, and torepeatedly refer in summation to the victim's alleged motive to fabricate the accusations againstdefendant. As for the undisclosed video, it was submitted to County Court for review as part ofthe opposition to defendant's posttrial motion, but was subsequently destroyed, necessitating areconstruction hearing. The evidence at the hearing, while indicating that the allegations againstdefendant were mentioned by the victim in the course of his admission to his own crimes, revealsno quid pro quo or anything said by the police or the victim to suggest that the victim thoughtthat he was going to benefit in his own case by implicating defendant. Thus, the writtenstatement was fully utilized and there is no indication in the record that disclosure of the videowould have altered defendant's trial strategy or would have provided sufficient additionalimpeachment material so as to affect the outcome of the trial (see People v Phillips, 55 AD3d 1145, 1149 [2008], lvdenied 11 NY3d 899 [2008]; People v Stevens, 216 AD2d 676, 678-679 [1995],lv denied 87 NY2d 908 [1995]; People v Venditto, 171 AD2d 952, 952-953[1991], lv denied 78 NY2d 1130 [1991]). We have considered defendant's remainingcontentions and find them to be unavailing.
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.