| People v Jamison |
| 2012 NY Slip Op 04934 [96 AD3d 571] |
| June 19, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AdamJamison, Appellant. |
—[*1] Adam A. Jamison, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered April 30, 2009,convicting defendant, after a jury trial, of robbery in the first degree, attempted assault in thesecond degree, and criminal trespass in the second degree, and sentencing him, as a secondviolent felony offender, to consecutive terms of 15 years and 2 to 4 years, concurrent with a termof 1 year, and order, same court and Justice, entered on or about December 22, 2010, whichdenied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
By failing to make any effort to obtain an allegedly exculpatory videotape after the Peopleinformed him of it and offered to make it available to him, defendant abandoned the claim thatthe People failed to disclose it (see People v Graves, 85 NY2d 1024, 1027 [1995]; People v Bethune, 65 AD3d 749,754 [2009], lv denied 17 NY3d 792 [2011]). The People disclosed the existence of thistape at defendant's arraignment, but defendant made no mention of the tape before or during trial,except for a general reference to videotapes made in a discovery motion. Defendant never alertedthe court to any claim that this videotape had not been produced. In any event, the record refutesdefendant's assertion that the tape may have been exculpatory.
Any deficiency in the People's CPL 710.30 (1) (b) notice became irrelevant when defendantmoved to suppress the identification testimony and received a full hearing on the fairness of theidentification procedure (see People v Kirkland, 89 NY2d 903 [1996]).
Defendant's argument that his lawyer was ineffective in failing to move to reopen thesuppression hearing based on the trial testimony of two identifying witnesses is unavailingbecause this evidence would not have resulted in a different suppression ruling (see People v Evans, 16 NY3d 571,576 [2011]). Based on the accounts of the identifications given at trial, both identifications wouldhave still constituted constitutionally permissible showups (see e.g. People v Gatling, 38 AD3d 239,240 [2007], lv denied 9 NY3d 865 [2007]).
We have considered defendant's pro se arguments, including his additional claims ofineffective assistance, and find them to be without merit. Concur—Mazzarelli, J.P., Saxe,DeGrasse, Richter and Abdus-Salaam, JJ.