| People v Kyler |
| 2012 NY Slip Op 04520 [96 AD3d 1431] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Bradley I.Kyler, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedJanuary 4, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled substance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of twocounts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]), defendant contends that he is entitled to be resentenced because the prosecutor failed toprovide Brady material, i.e., the details of defendant's alleged cooperation with lawenforcement agents and any promises that he received in return for such cooperation. Initially, wenote that defendant is correct that "Brady concerns exculpatory evidence that is relevant. . . to punishment" (Peoplev Reese, 23 AD3d 1034, 1036 [2005], lv denied 6 NY3d 779 [2006]; seegenerally Brady v Maryland, 373 US 83, 87 [1963]). Even assuming, arguendo, thatdefendant's contention survives his valid waiver of the right to appeal (see generally People v Johnson, 60AD3d 1496, 1497 [2009], lv denied 12 NY3d 926 [2009]), however, we concludethat it is unavailing. Defendant "failed to establish the existence of the [alleged Bradymaterial] . . . , and its potential [mitigation] value is purely speculative" (id.;see People v Little, 23 AD3d1117, 1118 [2005], lv denied 6 NY3d 777 [2006]; People v Mellerson, 15 AD3d964, 965 [2005], lv denied 5 NY3d 791 [2005]). In addition, " '[i]t is well settled thatevidence is not deemed to be Brady material when the defendant has knowledge of it,'and here the record establishes that defendant was aware [of the extent of his cooperation withlaw enforcement agents and any promises that were made to him]" (People v Wall, 38 AD3d 1341,1341 [2007], lv denied 9 NY3d 852 [2007]; see People v Archie, 78 AD3d 1560, 1562 [2010], lvdenied 16 NY3d 856 [2011]). Present—Scudder, P.J., Smith, Carni, Lindley andMartoche, JJ.