| People v Blyden |
| 2011 NY Slip Op 03130 [83 AD3d 542] |
| April 19, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Malisha Blyden, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Christopher J. Blira-Koessler of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered November 21, 2008,convicting defendant, after a jury trial, of attempted murder in the second degree, burglary in thefirst degree (two counts), robbery in the first degree (two counts), assault in the first degree andcriminal possession of a weapon in the second degree, and sentencing her to concurrent terms of25 years for the attempted murder conviction, 15 years for the assault and burglary convictionsand five years for the conviction for possession of a weapon, to be served consecutively toconcurrent terms of 15 years for the robbery convictions, unanimously affirmed.
The court properly exercised its discretion in denying defendant's mistrial motion based onthe People's alleged violation of Brady v Maryland (373 US 83 [1963]) with regard totheir disclosure, during the trial, of certain information relating to calls made from the victim'scell phone. The People had attempted to link defendant and the jointly tried codefendant with thecrime through evidence tending to show that the codefendant used the phone. The allegedBrady material tended to suggest that this linkage was actually weaker than it appeared.Even assuming the information in question could be considered Brady material, it wasdisclosed at a time that permitted the defense to effectively use the evidence (see People vCortijo, 70 NY2d 868, 870 [1987]). The court offered an extensive series of remedies inorder to ensure a full opportunity to expose the alleged weakness in the People's theoryconcerning the cell phone. There was no reasonable possibility that earlier disclosure would haveaffected the outcome of the trial. Defendant made only conclusory assertions of prejudice, andthe People's case was overwhelming.
The trial court properly exercised its discretion by excusing a juror who was admitted to thehospital for heart pain, was kept in the hospital overnight for observation, and was unable toreturn to court the following day. It was clear that waiting for the absent juror would delay thetrial for at least a full day, which was well beyond the statutory two-hour period (see CPL270.35 [2]; People v Jeanty, 94 NY2d 507 [2000]).
Defendant did not preserve her claims requiring the court's colloquy with an individual jurorduring deliberations, and we decline to review them in the interest of justice. As an [*2]alternative holding, we reject them on the merits. Although thecourt should not have given the individual juror any legal instruction in the absence of the otherjurors and without consulting with counsel in advance, defendant was not prejudiced by thecourt's handling of the matter especially because the instruction was correct and the entire jurywas later instructed on the need for a unanimous verdict.
Defendant's aggregate sentence of 40 years was lawful (see Penal Law § 70.25[2]; People v Laureano, 87 NY2d 640, 643 [1996]; People v Lopez, 15 AD3d 232 [2005], lv denied 4 NY3d888 [2005]), and we perceive no basis for reducing the sentence. Concur—Andrias, J.P.,Saxe, Moskowitz, Richter and Manzanet-Daniels, JJ.