| People v Phillip |
| 2016 NY Slip Op 03761 [139 AD3d 881] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Phillip, Appellant. |
Kevin Phillip, Otisville, NY, appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Jonathan K. Yi of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered October 24, 2012, convicting him of burglary in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, without a hearing, of the defendant's motion for an order authorizing him toobtain additional expert services.
Ordered that the judgment is affirmed.
The Supreme Court properly denied the defendant's motion for an order authorizinghim to obtain a second fingerprint/palm print expert. A defendant seeking expert servicesmust demonstrate that such services are necessary (see County Law§ 722-c; People vWilson, 107 AD3d 919 [2013]). The record indicates that the defendant hadalready been provided with an expert and did not set forth any reason why his expertcould not perform any additional fingerprint or palm print analysis he needed. Thedefendant's contention that fingerprint expert services were never rendered on his behalfis belied by the record. Since the defendant failed to demonstrate the necessity of theexpert services he requested, the Supreme Court providently exercised its discretion indenying the motion (see Peoplev Mallayev, 120 AD3d 1358 [2014]).
The defendant contends that the Supreme Court erred in failing to enforce asubpoena demanding from law enforcement any documents created when the People'sexpert matched the defendant's palm prints with those found at the crime scene (seeCPL 240.20 [1] [c]; People v Davis, 196 AD2d 597, 598 [1993]). Thiscontention is without merit. The People stated on the record several times that alldocuments relating to the matching of the crime scene lifts with the defendant's printshad been given to the defendant, and nothing else existed. The prosecutor'srepresentation that no other documents exist suffices to resolve the issue, and theSupreme Court is entitled to rely on that representation (see People v Minnerly,162 AD2d 627 [1990]). Accordingly, the Supreme Court properly declined to enforce thesubject subpoena, since the subpoenaed material did not exist and therefore compliancewas impossible (see Gray vGiarrizzo, 47 AD3d 765 [2008]).
Similarly, the Supreme Court properly rejected, without a hearing, these samearguments when raised in the defendant's motion pursuant to Criminal Procedure Law§ 330.30 (1) [*2]to set aside the verdict.Austin, J.P., Cohen, Miller and Duffy, JJ., concur.