| People v Walloe |
| 2011 NY Slip Op 07294 [88 AD3d 544] |
| October 18, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JasiriWalloe, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered on May30, 2008, convicting defendant, after a jury trial, of sexual abuse in the first degree (six counts)and criminal possession of stolen property in the fourth degree, and sentencing him, as a secondfelony offender, to an aggregate term of 14 years, unanimously affirmed.
The People did not violate their disclosure obligations under Brady v Maryland (373US 83 [1963]), and defendant is not entitled to reversal on the ground that the prosecution failedto acquire an allegedly exculpatory surveillance tape possessed by a private party. The tape wasin the exclusive possession of a bar, and it was never in the People's possession or control.Therefore, whether exculpatory or not, it did not constitute Brady material (see Peoplev Brock, 246 AD2d 406 [1998], lv denied 91 NY2d 940 [1998]). Although a policeofficer viewed the tape and requested a copy, he did not thereby constructively possess the tape,which was erased by the bar. Temporary access is not necessarily the equivalent of possession forBrady purposes (see People vHayes, 17 NY3d 46, 50-52 [2011] [no Brady violation where police failed tointerview witnesses after overhearing them make potentially exculpatory statements]).Furthermore, the officer testified as to his recollection of the contents of the tape, and there is noreason to believe it contained anything exculpatory. At most, it depicted defendant and the victimat a time and place not likely to have a bearing on the victim's intoxication at the time of thecrime. We have considered and rejected defendant's remaining Brady-related arguments.
The court properly denied defendant's request for a missing witness instruction. The Peopleestablished that the witness was unavailable despite reasonably diligent efforts to locate him(see e.g. People v Skaar, 225 AD2d 824, 824-825 [1996], lv denied 88NY2d 854 [1996]). Furthermore, the witness was not under the People's control for purposes of amissing witness instruction.
We do not find the sentence to be excessive.
Defendant's remaining claim is unpreserved and we decline to review it in the interest ofjustice. Concur—Saxe, J.P., Friedman, Moskowitz, Freedman and Richter, JJ.