| People v Wright |
| 2018 NY Slip Op 08158 [166 AD3d 1022] |
| November 28, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daquan Wright, Appellant. |
Paul Skip Laisure, New York, NY (De Nice Powell of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Camille O'HaraGillespie, and Marie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (NeilJon Firetog, J.), rendered November 16, 2015, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted, after a jury trial, of criminal possession of a weapon inthe second degree in connection with the shooting death of a 16-month-old boy who wasbeing pushed in a stroller by his father. At a joint trial, the People presented a witnesswho testified that he observed the defendant hand the codefendant a gun shortly beforethe codefendant fired it at the boy's father. The boy was struck in the head with a bulletand subsequently died. The jury found the defendant guilty of criminal possession of aweapon in the second degree, and the codefendant guilty of murder in the second degreeand criminal possession of a weapon in the second degree. The defendant appeals.
The defendant's contention that the People committed a Brady violation(see Brady v Maryland, 373 US 83 [1963]) by failing to disclose that a witnesshad collected a $2,000 reward from Crime Stoppers prior to trial is unpreserved forappellate review because it was not raised before the trial court (see People v Fort, 146 AD3d1017, 1019 [2017]; Peoplev Thompson, 54 AD3d 975, 975-976 [2008]). In any event, the defendant'scontention is without merit. The People have a duty to disclose to the defense evidence inits possession that is favorable to the accused (see Brady v Maryland, 373 US 83[1963]; People v Steadman, 82 NY2d 1, 7 [1993]). The disclosure of evidenceaffecting credibility falls within this general rule (see Giglio v United States, 405US 150, 154 [1972]; People v Steadman, 82 NY2d at 7; People v Novoa,70 NY2d 490, 496 [1987]).
To establish a Brady violation, a defendant must show that the evidence isfavorable to the defendant because it is either exculpatory or impeaching in nature, theevidence was suppressed by the prosecution, and prejudice arose because the suppressedevidence was material (seePeople v Fuentes, 12 NY3d 259, 263 [2009]; see also People v Garrett, 23NY3d 878, 885 [2014]). Where [*2]a defendantmakes a specific request for undisclosed evidence, materiality is established if thereexists a reasonable possibility that it would have changed the result of the proceedings(see People v Fuentes, 12 NY3d at 263; People v Vilardi, 76 NY2d 67,77 [1990]).
Here, there is no evidence that the prosecution was aware of the $2,000 reward at thetime of the defendant's trial, as the identity of individuals providing information to, andcollecting rewards from, Crime Stoppers is kept confidential. Moreover, it is clear thatthe witness received substantial benefits of approximately $12,000 in exchange for hiscooperation in the case against the defendant and that this information was disclosed tothe defendant. The defendant engaged in extensive cross-examination of the witnessregarding this issue, as well as that witness's extensive criminal history, current pendingcharges, and inconsistent statements regarding the shooting. Under these circumstances,there is no reasonable possibility that additional cross-examination of that witnessconcerning the $2,000 reward would have yielded a different result and, therefore,reversal is not required on this ground (see People v Bond, 95 NY2d 840, 843[2000]; People v Sheppard,107 AD3d 1237, 1240 [2013]; People v Phillips, 55 AD3d 1145, 1149 [2008]).
The defendant's contention that the Supreme Court should have granted his motionfor a severance is only partially preserved for appellate review (see CPL 470.05[2]). In any event, the court providently exercised its discretion in denying the motion(see People v Mahboubian, 74 NY2d 174, 183 [1989]). The charges wereproperly joined, as they were part of a common scheme or plan (see CPL 200.40[1] [b]; People v Everspaugh, 171 AD2d 950, 951 [1991]). Moreover, the proofagainst the defendant and the codefendant was supplied by the same eyewitness (seePeople v Wallace, 261 AD2d 493 [1999]), and the defendant's defense was by nomeans "antagonistic" to that of the codefendant's (see People v Mahboubian, 74NY2d at 186). The defendant's contention that the court failed to instruct the jury that itwas not permitted to use the evidence related to the codefendant's homicide count againstthe defendant is unpreserved for appellate review (see CPL 470.05 [2]) and, inany event, without merit.
The defendant's contention that the Supreme Court erred in admitting excerpts of thesworn audiotaped statements made by two witnesses to law enforcement officials underthe past recollection recorded exception to the hearsay rule is only partially preserved forappellate review (see CPL 470.05 [2]). In any event, we agree with the court'sdetermination to admit this evidence as a past recollection recorded (see People vTaylor, 80 NY2d 1, 8 [1992]; People v Clemente, 84 AD3d 829, 830 [2011]; People v Linton, 21 AD3d909 [2005]; cf. People vPacheco, 38 AD3d 686 [2007]). Dillon, J.P., Roman, Maltese and Christopher,JJ., concur.