| People v Daniels |
| 2014 NY Slip Op 02205 [115 AD3d 1364] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vBurnie Daniels, Appellant. |
—[*1] Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.),rendered August 4, 2009. The judgment convicted defendant, upon a jury verdict, ofcriminal mischief in the third degree and petit larceny.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal mischief in the third degree (Penal Law § 145.05 [2]) and petitlarceny (§ 155.25). Viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we reject defendant'scontention that the evidence is legally insufficient to support the conviction (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Furthermore, we concludethat defendant received meaningful representation (see generally People v Baldi,54 NY2d 137, 147 [1981]) and, viewing the evidence in light of the elements of thecrimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we alsoconclude that defendant's contention that the verdict is against the weight of the evidencelacks merit (see generally Bleakley, 69 NY2d at 495).
We agree with defendant that County Court erred in allowing the People to elicittestimony that defendant invoked his right to counsel (see People v Nicholas, 286AD2d 861, 862 [2001], affd 98 NY2d 749 [2002]; People v Morrice, 61 AD3d1390, 1391 [2009]; Peoplev Hunt, 18 AD3d 891, 892 [2005]), but we conclude that reversal is notrequired; the error is harmless beyond a reasonable doubt "inasmuch as there is noreasonable possibility that the error[ ] might have contributed to defendant's conviction"(People v Capers, 94 AD3d1475, 1476 [2012], lv denied 19 NY3d 971 [2012] [internal quotation marksomitted]; see People vKithcart, 85 AD3d 1558, 1559-1560 [2011], lv denied 17 NY3d 818[2011]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]). We alsoreject defendant's contention that he is entitled to a new trial based on a Bradyviolation. " '[W]hile the People unquestionably have a duty to disclose exculpatorymaterial in their control,' a defendant's constitutional right to a fair trial is not violatedwhen, as here, he is given a meaningful opportunity to use the allegedly exculpatorymaterial . . . as evidence during his case" (People v Cortijo, 70NY2d 868, 870 [1987]; seePeople v Comfort, 60 AD3d 1298, 1300 [2009], lv denied 12 NY3d 924[2009]; People v Barney, 295 AD2d 1001, 1002 [2002], lv denied 98NY2d 766 [2002]).[*2]
Finally, we reject defendant's contention that heis entitled to a new trial based on an alleged Rosario violation. Even assuming,arguendo, that all of the disputed evidence is Rosario material (see People vTurner, 233 AD2d 932, 933 [1996], lv denied 89 NY2d 1102 [1997];People v Stern, 226 AD2d 238, 239-240 [1996], lv denied 88 NY2d 969[1996], lv denied upon reconsideration 88 NY2d 1072 [1996]), we conclude thatreversal is not warranted here. With respect to the evidence that defendant contends wasnot timely disclosed, we conclude that defendant failed to make a showing that there is "areasonable possibility that the result at trial would have been different if [that] material[ ]had been timely disclosed" (People v Williams, 50 AD3d 1177, 1180 [2008];see CPL 240.75). With respect to the evidence disclosed only after trial, weconclude that defendant failed to "show[ ] 'that there is a reasonable possibility that thenon-disclosure materially contributed to the result of the trial' " (Williams, 50AD3d at 1179, quoting CPL 240.75). Present—Centra, J.P., Fahey, Lindley,Sconiers and Whalen, JJ.