| People v Cabrera |
| 2016 NY Slip Op 02533 [137 AD3d 707] |
| March 31, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Luis Cabrera, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Sharmeen Mazumder ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered May 1,2014, convicting defendant, after a nonjury trial, of burglary in the second degree, andsentencing him to a term of 3
The People laid a sufficient foundation for the admission of a video disc consistingof a compilation of portions of footage drawn from numerous police surveillancecameras in a Housing Authority building. Authentication was provided by a competentpolice witness (see People v Patterson, 93 NY2d 80, 84 [1999]), who testified indetail about the videotaping and compilation process. She explained that she viewedseveral hours of videotape and created a 30-minute disc that included all the footage thatwas relevant to the case, that is, all views of any persons involved in this case enteringand leaving the building. There is no basis for disturbing the court's credibilitydeterminations, and no reason to believe that the compilation was incomplete orotherwise unsatisfactory.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]). To the extent the court's verdict may have rested on thetheory of accomplice liability, this was entirely proper notwithstanding that the courtnever announced that it would "charge itself" on that theory. While there may besituations where the court in a nonjury trial should inform the parties that it isconsidering certain matters, such as lesser included offenses, there is generally norequirement that a judge, who is presumed to decide a case "based upon appropriate legalcriteria" (People v Moreno, 70 NY2d 403, 406 [1987]), formally "charge" orannounce the applicability of any particular legal principles.
Defendant has not established that he was prejudiced by the People's midtrialdisclosure of impeachment material to which defendant was entitled under Brady vMaryland (373 US 83 [1963]). Defendant received a sufficient opportunity tocross-examine the witness using this evidence (see People v Brown, 67 NY2d555, 559 [1986], cert denied 479 US 1093 [1987]). The People had not originallyintended to call the witness at issue, and they disclosed the impeachment materialimmediately after learning that this witness's testimony was necessary to authenticate thevideotape. The court provided a suitable remedy when it offered defendant an [*2]adjournment to prepare for cross-examination, a remedythat could have readily been implemented in a nonjury trial, but that offer was declined.Concur—Tom, J.P., Sweeny, Manzanet-Daniels, Gische and Gesmer, JJ.