| People v Redmon |
| 2020 NY Slip Op 03424 [184 AD3d 775] |
| June 17, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sharef Redmon, Appellant. |
Paul Skip Laisure, New York, NY (Denise A. Corsí of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Diane R. Eisner ofcounsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County(Danny K. Chun, J.), entered October 8, 2013, which, without a hearing, denied his motionpursuant to CPL 440.10 to vacate a judgment of the same court rendered March 28, 2008,convicting him of murder in the second degree and criminal possession of a weapon in thesecond degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the order is affirmed.
The defendant moved pursuant to CPL 440.10 to vacate his judgment of conviction on thebasis that the prosecutor committed Brady violations (see Brady v Maryland, 373US 83 [1963]), and that his counsel was ineffective for failing to request that the trial courtreview, in camera, certain DD-5 reports to determine whether they contained Bradymaterial.
Contrary to the Supreme Court's conclusion, these contentions were not subject to amandatory procedural bar. CPL 440.10 (2) requires denial of a motion to vacate a judgment, interalia, when the ground raised on the motion was previously determined on the merits upon a directappeal or where sufficient facts appeared on the record to have permitted review of the issue ondirect appeal but no such review occurred due to the defendant's unjustifiable failure to raise theissue on appeal (see CPL 440.10 [2] [a], [c]). Although, on direct appeal, this Courtaddressed a contention raised by the defendant regarding a potential violation of People vRosario (9 NY2d 286 [1961]; seePeople v Redmon, 81 AD3d 752, 753 [2011]), the defendant's current contentionsinvolve an alleged Brady violation. Moreover, the defendant's current contentions arebased on matters dehors the record on direct appeal and, thus, were not, and could not have been,reviewed on direct appeal.
Nevertheless, the defendant's contentions were properly rejected without a hearing. Counselwas not ineffective for failing to request an in camera review of the DD-5 reports, as merebelated disclosure of certain Brady material and the number of DD-5 reports notdisclosed, without more, provided an insufficient factual basis for arguing that the prosecutor hadimproperly denied the existence of Brady material in the reports (see People vRodriguez, 181 AD2d 841, 842 [1992]; see also People v Contreras, 12 NY3d 268, 272 [2009]; cf.People v Poole, 48 NY2d 144, 149 [1979]; People v Consolazio, 40 NY2d 446, 453[1976]). Similarly, the defendant failed to demonstrate that his judgment of conviction should bevacated based on an alleged Brady violation in failing to disclose the DD-5 reports, orthat he was entitled to a hearing on that issue (see People v Jones, 115 AD3d 984, 986 [2014]). Balkin, J.P.,Leventhal, Miller and Christopher, JJ., concur.