| People v Gonzalez |
| 2011 NY Slip Op 08014 [89 AD3d 1443] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Hector Gonzalez,Also Known as "Indio", Appellant. |
—[*1] Hector Gonzalez, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered April 29,2010. The judgment convicted defendant, upon a nonjury verdict, of murder in the second degree andcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a bench trial of murderin the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in thesecond degree (§ 265.03 [3]). County Court properly refused to suppress the testimony of awitness who identified defendant on the ground that the photo array presented to her was undulysuggestive. "Because 'the subjects depicted in the photo array [were] sufficiently similar in appearanceso that the viewer's attention [was] not drawn to any one photograph in such a way as to indicate thatthe police were urging a particular selection,' the photo array was not unduly suggestive" (People v Weston, 83 AD3d 1511[2011], lv denied 17 NY3d 823 [2011]). The court also properly determined that a witnesswho testified concerning inculpatory statements made to him by defendant while they were bothincarcerated was not acting as an agent of the police when defendant made the statements (see People v McCray, 66 AD3d 1338,1339 [2009], lv denied 13 NY3d 908 [2009], reconsideraton denied 14 NY3d 803[2009]; see generally People v Cardona, 41 NY2d 333, 335 [1977]). The evidence, viewed inthe light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), islegally sufficient to support the conviction and, viewing the evidence in light of the elements of the crimesin this bench trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weightof the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We rejectdefendant's further contention that the People failed to disclose Brady material in a timelymanner. Even assuming, arguendo, that the witness statement at issue was exculpatory, we concludethat the alleged Brady violation does not require reversal because defendant received thestatement " 'as part of the Rosario material provided to him and was given a meaningfulopportunity to use the exculpatory evidence' " (People v Green, 74 AD3d 1899, 1901 [2010], lv denied 15NY3d 852 [2010]). Defendant waived his contention that he was denied [*2]his right to present a defense based upon alleged attempts by the policeto intimidate a defense witness, inasmuch as the court granted the only relief sought by defendant inconnection therewith and defendant did not further object (see Delong v County of Chautauqua[appeal No. 2], 71 AD3d 1580, 1580-1581 [2010]; see generally People v Kulakov, 72 AD3d 1271, 1273-1274 [2010],lv denied 15 NY3d 775 [2010], lv dismissed 16 NY3d 896 [2011]; People v Miller, 37 AD3d 1071[2007]). The sentence is not unduly harsh or severe. Finally, we have examined defendant's contentionsin his pro se supplemental brief and conclude that none requires reversal or modification of thejudgment. Present—Peradotto, J.P., Carni, Lindley, Sconiers and Green, JJ.