| People v Gomez |
| 2016 NY Slip Op 00512 [135 AD3d 954] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dominique Gomez, Appellant. |
Jillian S. Harrington, Staten Island, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered August 20, 2014, as amended February 5, 2015, convicting him ofrobbery in the second degree (two counts), attempted robbery in the second degree (twocounts), and unlawful imprisonment in the second degree, upon a jury verdict, andsentencing him to determinate terms of imprisonment of seven years on the convictionsof robbery in the second degree, followed by five years of postrelease supervision, fouryears on the conviction of attempted robbery in the second degree under count three ofthe indictment, followed by two years of postrelease supervision, and five years on theconviction of attempted robbery in the second degree under count four of the indictment,followed by two years of postrelease supervision, and a definite term of incarceration ofone year on the conviction of unlawful imprisonment in the second degree, with allsentences to run concurrently.
Ordered that the judgment, as amended, is modified, as a matter of discretion in theinterest of justice, by reducing the sentences imposed on the convictions of robbery in thesecond degree from determinate terms of imprisonment of seven years, followed by fiveyears of postrelease supervision, to determinate terms of imprisonment of five years,followed by two years of postrelease supervision; as so modified, the judgment, asamended, is affirmed.
The defendant failed to preserve for appellate review his contention that he wasdeprived of his constitutional rights to confront witnesses against him and to present adefense by the County Court's limitation of cross-examination of his accomplicesregarding the potential sentence they would have faced had they not pleaded guilty tolesser charges in exchange for their testimony (see People v Lane, 7 NY3d 888, 889 [2006]; People v Dorcinvil, 122 AD3d874 [2014]). In any event, any error was harmless beyond a reasonable doubt, asthere was overwhelming evidence of the defendant's guilt and no reasonable possibilitythat any such error might have contributed to the defendant's conviction (see People v Hardy, 4 NY3d192, 198 [2005]; People v Crimmins, 36 NY2d 230, 237 [1975]). Thedefendant's further contention that the court committed evidentiary error in limitingcross-examination is without merit (see People v Cobos, 57 NY2d 798, 802[1982]; People v De Vito, 56 NY2d 846 [1982]; People v Bisnett, 144AD2d 567, 570 [1988]).
[*2] The CountyCourt providently exercised its discretion in denying the defendant's motion for a mistrialbased on the People's alleged violation of Brady v Maryland (373 US 83 [1963])with regard to their disclosure, during the trial, that one of the complainants had admittedto lying to the grand jury about certain facts. To the extent that this impeachmentevidence constituted Brady material, it was disclosed at a time that permitted thedefense to effectively use the evidence (see People v Carter, 131 AD3d 717, 720 [2015]; People v Blyden, 83 AD3d542, 542-543 [2011]; People v Robinson, 61 AD3d 784 [2009]; People v Myron, 28 AD3d681, 683-684 [2006]). Further, there is no reasonable probability that earlierdisclosure would have affected the outcome of the trial (see People v Garrett, 23 NY3d878, 892 [2014]).
The defendant correctly contends that the People violated Criminal Procedure Law§ 240.20 (1) by failing to timely disclose, in response to his demand, thedata obtained from his cell phone and the People's possession of a knife recovered fromthe vehicle in which he was riding at the time of the crimes (see CPL 240.20 [1][c], [f]; People v Jenkins, 98 NY2d 280, 283-284 [2002]). However, reversal isnot warranted based on these violations because the defendant failed to establish that hewas prejudiced by the delay in disclosure (see People v Jenkins, 98 NY2d at 285;People v Cunningham, 189 AD2d 821 [1993]). The requested remedy ofpreclusion of the cell phone data was properly denied as unwarranted (see People vCunningham, 189 AD2d 821 [1993]). Although defense counsel then requested acontinuance to consider the newly disclosed materials, he later withdrew that request,conceding that there had not been any prejudice from the delayed disclosure. Further, thedefendant was acquitted of the only charge related to his alleged possession and use ofthe knife.
Contrary to the defendant's contention, he was not deprived of a fair trial or the rightto present a defense as a result of the County Court's denial of his requests for acontinuance of one week to obtain data from an accomplice's cell phone (see People v Stewart, 89 AD3d1044 [2011]), or for an adverse inference charge related to the People's failure toobtain such evidence (seePeople v Durant, 26 NY3d 341 [2015]). The court providently exercised itsdiscretion in making these rulings (see People v Pena, 113 AD3d 701 [2014]; People vDobson, 268 AD2d 442 [2000]).
The defendant failed to preserve for appellate review his contention that the sentenceimposed by the County Court improperly penalized him for exercising his right to a jurytrial, because he did not set forth the issue on the record at the time of sentencing (seePeople v Hurley, 75 NY2d 887, 888 [1990]; People v Ray, 100 AD3d 933, 934 [2012]). In any event,the fact that the sentence imposed after trial was greater than the sentence offered duringplea negotiations does not, standing alone, establish that the defendant was punished forexercising his right to trial (see People v Pena, 50 NY2d 400, 411 [1980];People v Ray, 100 AD3d at 934).
The sentence imposed was excessive to the extent indicated herein. Balkin, J.P.,Chambers, Cohen and Maltese, JJ., concur.