| People v Pennington |
| 2013 NY Slip Op 04526 [107 AD3d 1602] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesPennington, Appellant. |
—[*1]
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Supreme Court, Erie County(Joseph S. Forma, J.), dated June 11, 2003. The order denied the motion of defendantpursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his pro se motion pursuantto CPL article 440 seeking to vacate the judgment convicting him of two counts ofmurder in the second degree (Penal Law § 125.25 [1], [2]). We previouslyaffirmed that judgment of conviction (People v Pennington, 217 AD2d 919[1995], lv denied 87 NY2d 906 [1995]), and we now conclude that SupremeCourt properly denied defendant's motion without conducting a hearing. Defendantcontends that the People abused the grand jury process by serving a subpoena after theindictment had been issued. The court properly determined that, although the Peopleabused the grand jury process (see Matter of Hynes v Lerner, 44 NY2d 329, 333[1978], rearg denied 44 NY2d 950 [1978], cert denied 439 US 888[1978]; see generally People v Natal, 75 NY2d 379, 385 [1990], certdenied 498 US 862 [1990]), defendant has not established any prejudice resultingtherefrom (see CPL 440.10 [1] [f]; see generally People v Jackson, 78NY2d 638, 646 [1991]; People v McNeill, 204 AD2d 975, 976 [1994], lvdenied 84 NY2d 829 [1994]). Defendant further contends that the People committedRosario and Brady violations by failing to turn over certain notes of theprosecutor concerning interviews with various police witnesses. We conclude, however,that defendant's contention is based on an incorrect reading of those notes. Indeed, basedupon an accurate reading of the notes, we conclude that they have no exculpatory value,and that there was no "reasonable possibility that the failure to disclose the [notes]contributed to the verdict" (People v Jackson, 78 NY2d 638, 649 [1991]; see People v Fuentes, 12NY3d 259, 263 [2009], rearg denied 13 NY3d 766 [2009]).
Defendant's challenge to the admission of the testimony of the Associate ChiefMedical Examiner (hereafter, Medical Examiner) at trial could have been raised on directappeal, and thus the court properly denied that part of his motion challenging thattestimony (see CPL 440.10 [2] [c]). In addition, the court properly determinedthat defendant failed to establish that there was any discovery violation with respect toautopsy notes and a death certification (see CPL 440.30[*2][4] [b]; People v Vigliotti, 24 AD3d 1216, 1216 [2005]). Likewise,the court properly determined that defendant failed to substantiate his allegation that aprosecution witness entered into an unlawful agreement with defendant's insurers(see CPL 440.30 [3] [b]; Vigliotti, 24 AD3d at 1216).
We reject defendant's contention that he received ineffective assistance of counsel attrial. To the extent that defendant relies on records that were introduced in evidence attrial in support of his contention, we conclude that defendant could have raised thatcontention on his prior appeal (see CPL 440.10 [2] [c]; People v Mastowski, 63 AD3d1589, 1590 [2009], lv denied 12 NY3d 927 [2009], reconsiderationdenied 13 NY3d 837 [2009]). To the extent that defendant relies on records thatdefense counsel had in his possession but failed to use when questioning the MedicalExaminer, we conclude that his contention is without merit. Specifically, the MedicalExaminer testified at trial that the victim was shot once in the abdomen and twice in theback. Defendant contends that certain records not introduced in evidence at trial raise aquestion whether the victim was shot more than once in the front, rather than the back,and that defense counsel should have used those records to challenge the testimony of theMedical Examiner in order to support his justification defense. Defendant's own expert attrial, however, agreed with the Medical Examiner that there were two entrance wounds tothe victim's back. Thus, if defense counsel had attacked the findings of the MedicalExaminer regarding the entrance wounds to the back, he would also have been attackingthe credibility of defendant's own expert. Defendant has therefore failed to establish theabsence of a strategic reason for defense counsel's failure to challenge the testimony ofthe Medical Examiner based on records in defense counsel's possession (see People v Rosado, 13 AD3d902, 903-904 [2004], lv denied 4 NY3d 835 [2005]).
Defendant's contention that the court erred in failing to submit the two murdercharges, i.e., for intentional murder and depraved indifference murder, in the alternativewas not raised in his CPL 440.10 motion and therefore is not properly before us (seegenerally People v Brown, 217 AD2d 797, 798 [1995], lv denied 86 NY2d872 [1995]; People v Green, 111 AD2d 349, 349 [1985]). We have considereddefendant's remaining contentions and conclude that they are without merit.Present—Centra, J.P., Sconiers, Valentino and Whalen, JJ.