| People v Bernard |
| 2014 NY Slip Op 01879 [115 AD3d 1214] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vGregory Bernard, Appellant. (Appeal No. 1.) |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered September 25, 2008. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and,in appeal No. 2, he appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (§ 265.03 [3]). Defendantcontends in both appeals that the People failed to disclose Brady material in atimely manner. We agree. We conclude, however, that the Brady violation doesnot require reversal because the information was turned over as Rosario materialprior to jury selection, thus affording defendant a "meaningful opportunity" to use theinformation during cross-examination (People v Middlebrooks, 300 AD2d 1142,1143 [2002], lv denied 99 NY2d 630 [2003]; see People v Cortijo, 70NY2d 868, 870 [1987]; Peoplev Abuhamra, 107 AD3d 1630, 1631 [2013], lv denied 22 NY3d 1038[2013]). Contrary to defendant's contention, there is no "reasonable probability that, hadthe evidence been disclosed to [him]" prior to the Wade hearing, " 'the result ofthe [hear]ing would have been different' " (People v Chin, 67 NY2d 22, 33[1986]). Defendant failed to preserve for our review his alternative contention thatCounty Court erred in failing to reopen the Wade hearing based upon the delayeddisclosure (see People vClark, 28 AD3d 1231, 1232 [2006]; People v Highsmith, 259 AD2d1006, 1007 [1999], lv denied 93 NY2d 925 [1999]), and we decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We reject the further contention of defendant that he was denied effective assistanceof counsel by his attorney's failure to request a limiting instruction with respect to certainMolineux evidence. Indeed, defense counsel "declined such an instruction on therecord after a colloquy with County Court in which it was clear that doing so was part ofa legitimate trial strategy" (People v Smith, 41 AD3d 964, 965 [2007], lvdenied 9 NY3d 881 [2007]), and we will not "second-guess" that strategic decisionon appeal (People v Cherry,46 AD3d 1234, 1238 [2007], lv denied 10 NY3d 839 [2008]; see People v Williams, 107AD3d 1516, 1516-1517 [2013], lv denied 21 NY3d 1047 [2013]; Peoplev Copeland, 43 [*2]AD3d 1436, 1436-1437 [2007],lv denied 9 NY3d 1032 [2008]). Moreover, our review of the record as a wholeestablishes that defense counsel provided meaningful representation (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Centra, Peradotto, Lindley and Whalen, JJ.