| People v Tripp |
| 2018 NY Slip Op 04011 [162 AD3d 691] |
| June 6, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Stephen Tripp, Appellant. |
Seymour W. James, Jr., New York, NY (Allen Fallek of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Jill A. Gross-Marks, Joseph N. Ferdenzi, and Roni C. Piplani of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael B.Aloise, J.), rendered October 17, 2014, convicting him of robbery in the second degree, upon ajury verdict, and imposing sentence. The appeal brings up for review the denial (James P. Griffin,J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgment is affirmed.
The defendant was arrested after the complainant identified him as one of two individualswho robbed the complainant of his cell phone. Elliot Hankerson, whom the complainantidentified as the other perpetrator, and the defendant were tried jointly. The jury foundHankerson guilty of robbery in the first and second degrees and the defendant guilty of robbery inthe second degree. Hankerson appealed, and this Court affirmed the judgment of conviction (see People v Hankerson, 149 AD3d778 [2017]). The defendant appeals.
The defendant's contention that the evidence adduced by the People was legally insufficientto establish his identity as one of the perpetrators who robbed the complainant of his cell phoneis preserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]). However, the contention is without merit. Viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we findthat it was legally sufficient to establish the defendant's identity as one of the perpetrators.Moreover, in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we neverthelessafford great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant further contends that the People's delay in disclosing the complainant's cellphone record for the period following the robbery violated the defendant's right to a fair trial[*2]under Brady v Maryland (373 US 83 [1963]), and thatthe Supreme Court should have given an adverse inference charge based on the People's delayeddisclosure of the record. This contention is without merit. A defendant's constitutional right to afair trial is not violated when he is given a meaningful opportunity to use the allegedlyexculpatory material to cross-examine the People's witnesses or as evidence during his case(see People v Cortijo, 70 NY2d 868, 870 [1987]). Here, assuming the subject recordconstituted Brady material, it was turned over during the People's case-in-chief, anddefense counsel made use of it during cross-examination of a testifying detective. Moreover,defense counsel did not seek to recall any prosecution witness who had already testified for thepurpose of conducting further cross-examination based on the contents of the complainant's cellphone record. Accordingly, the defendant was afforded a meaningful opportunity to make use ofthe record at trial (see People vRivera, 105 AD3d 1343, 1345-1346 [2013]), and the court did not err in failing to givean adverse inference instruction with regard to it.
The defendant's contentions, raised in his pro se supplemental brief, regarding an allegedfailure to preserve and disclose certain surveillance videos are unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, without merit. The defendant's challenges toidentification evidence, raised in his pro se supplemental brief, are without merit. Mastro, J.P.,Rivera, Hinds-Radix and Iannacci, JJ., concur.