| People v Milton |
| 2011 NY Slip Op 09706 [90 AD3d 1636] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RasheedMilton, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered March 24, 2010. The judgment convicted defendant, upon a jury verdict, of predatorysexual assault (two counts), criminal possession of a weapon in the third degree, and unlawfulimprisonment 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 upon a jury verdict of,inter alia, two counts of predatory sexual assault (Penal Law § 130.95 [1] [b]; [3]).Defendant contends that the People committed a Brady violation inasmuch as they failedto inform him that one of the investigating police officers who testified at trial had a second jobas a private investigator for an agency that is periodically retained by the law firm representingthe victim in a personal injury action arising out of the incident underlying the conviction. Wereject that contention. Even assuming, arguendo, that such information constituted Bradymaterial on the ground that it could be used to impeach the officer's testimony, we conclude thatthere was no "reasonable possibility that the outcome of the trial would have differed had [thatinformation] been [disclosed]" (People v Scott, 88 NY2d 888, 891 [1996]; see Peoplev Vilardi, 76 NY2d 67, 77 [1990]).
Defendant's further contention that he was deprived of a fair trial based on prosecutorialmisconduct is not preserved for our review (see CPL 470.05 [2]) and, in any event, thatcontention is without merit. "Reversal on [the] ground[ ] of prosecutorial misconduct 'ismandated only when the conduct has caused such substantial prejudice to the defendant that he[or she] has been denied due process of law' " (People v Rubin, 101 AD2d 71, 77 [1984],lv denied 63 NY2d 711 [1984]), and that is not the case here. We reject defendant'scontention that he was denied effective assistance of counsel. Viewing the evidence, the law andthe circumstances of this case in totality and as of the time of the representation, we concludethat defendant received meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]). We have considered defendant's remaining contentions and concludethat they are without merit. Present—Scudder, P.J., Centra, Fahey, Carni and Sconiers, JJ.