| People v Ulett |
| 2017 NY Slip Op 06386 [153 AD3d 945] |
| August 30, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Derrick Ulett, Appellant. |
Lynn W. L. Fahey, New York, NY (Leila Hull of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Ruth E. Rossof counsel), for respondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered January 6, 2011, convicting him of murder in the second degree, upon ajury verdict, and imposing sentence, and (2), by permission, from an order of the same courtdated January 20, 2015, which denied, after a hearing, his motion to vacate the judgmentpursuant to CPL 440.10.
Ordered that the judgment and the order are affirmed.
The defendant moved pursuant to CPL 440.10 to vacate his conviction of murder in thesecond degree on the ground that the People failed to disclose a surveillance video of the lobbyof the building outside of which the crime occurred, in violation of Brady v Maryland(373 US 83 [1963]). "To make out a successful Brady claim, a defendant must show that(1) the evidence is favorable to the defendant because it is either exculpatory or impeaching innature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because thesuppressed evidence was material" (People v Garrett, 23 NY3d 878, 885 [2014] [internal quotationmarks omitted]). Where, as here, the defense did not specifically request the information, the testof materiality is whether there is a reasonable probability that had it been disclosed to thedefense, the result would have been different—i.e., a probability sufficient to underminethe court's confidence in the outcome of the trial (see id. at 891; People v Hunter, 11 NY3d 1, 6[2008]).
Here, the defendant failed to show a reasonable probability that the result would have beendifferent had the video been disclosed prior to trial, particularly in light of the very limited viewprovided in the video of the events occurring outside the building. Further, any impeachmentvalue provided by the video was minimal, as was the likelihood that the video would have led toadditional exculpatory or impeaching evidence. Accordingly, the Supreme Court properly deniedthe defendant's motion.
The defendant's contentions regarding alleged prosecutorial misconduct during summationare largely unpreserved for appellate review (see CPL 470.05 [2]; People v Rosario, 149 AD3d 982[2017]). In any event, although some remarks were improper, they were not so flagrant or [*2]pervasive as to deprive the defendant of a fair trial (see People v Rosario, 149 AD3d982 [2017]; People v Ward,106 AD3d 842, 843 [2013]).
The defendant's attorney provided meaningful representation (see People vBenevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Balkin, J.P., Roman, Sgroi and Duffy, JJ., concur.