| People v Geritano |
| 2018 NY Slip Op 01079 [158 AD3d 724] |
| February 14, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Battista Geritano, Appellant. |
Battista Geritano, Dannemora, NY, appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jodi L. Mandel, and JohnC. Carroll of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (AlbertTomei, J.), rendered December 6, 2013, convicting him of attempted assault in the first degreeand criminal possession of a weapon in the third degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the People violated his Brady rights (see Brady vMaryland, 373 US 83 [1963]) and his right to present a defense by failing to preserve certainsurveillance videotape is unpreserved for appellate review, as he failed to raise this claim beforeentry of the verdict, consented to the Supreme Court giving the jury a missing evidence chargewith respect to the missing surveillance video, and did not raise any objections to the charge asgiven (see CPL 470.05 [2]; People v Padro, 75 NY2d 820, 821 [1990]; Peoplev Robinson, 225 AD2d 399, 400 [1996]). In any event, the defendant's contention is withoutmerit (see People v Handy, 20NY3d 663, 669 [2013]).
The defendant's contentions that the integrity of the grand jury proceeding was impaired bycertain evidentiary errors and prosecutorial misconduct are without merit. The defendant failed toshow that the People knowingly withheld any of the video surveillance from the grand jury, orknowingly misrepresented the subject matter of the testimony that would have been given beforethe grand jury by the defendant's proffered witnesses (see People v Avilla, 212 AD2d800, 800-801 [1995]). Moreover, it was not improper for the prosecutor to omit, from hissummary to the grand jury of the proffered testimony of one of the defense witnesses, thoseportions of the proffered testimony which would have constituted impermissible hearsay (seePeople v Swamp, 84 NY2d 725, 730 [1995]; People v Simon, 101 AD3d 908, 909 [2012]).
The defendant's remaining contentions are not subject to review on direct appeal becausethey involve allegations that are dehors the record, which should be raised on a motion to vacatethe judgment pursuant to CPL 440.10 (see People v Jackson, 29 NY3d 18, 24 [2017]; People v Flores, 151 AD3d 740,741 [2017]; People v Singh, 147AD3d 787, 788 [2017]; People vMacaluso, 144 AD3d 947, 947 [2016]; People v Morrow, 143 AD3d 919, 920 [2016]; People v Bruno, 127 AD3d 986,987 [2015]). Chambers, J.P., Hall, Duffy and Barros, JJ., concur.