Opinion
Argued June 3, 1997;
Decided June 27, 1997
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Laura Burde, New York City, and Daniel L. Greenberg for appellant.
Richard A. Brown, District Attorney of Queens County, Kew Gardens ( Linda Cantoni and John M. Castellano of counsel), for respondent.
Lynn W. L. Fahey for New York State Association of Criminal Defense Lawyers, amicus curiae.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was charged with acting in concert with three other individuals to commit two counts of murder in the second degree and related crimes. The evidence before the Grand Jury included testimony of an accomplice. Trial counsel moved to inspect the Grand Jury minutes and for dismissal of the indictment upon the ground that a failure to have given a proper accomplice corroboration charge would be "fatal" to the indictment. After inspecting the minutes, the trial court found the evidence before the Grand Jury legally sufficient to support the charges contained in the indictment. Defendant was subsequently convicted, after a jury trial, of murder in the second degree and assault in the second degree.
Pending appeal of his conviction, defendant moved to enlarge the record on appeal to include minutes of the Grand Jury proceedings. Defendant included a request for the same relief in his brief to the Appellate Division and also requested permission to file a supplemental brief if necessary. The motion was referred to the panel assigned to hear the appeal, to be determined after an in camera review of the entire minutes. After review, the Appellate Division denied the motion to enlarge the record and affirmed defendant's conviction and sentence.
Contrary to defendant's arguments, the Appellate Division's denial of his motion to enlarge the record did not deprive him of his due process right to a meaningful appeal nor under the circumstances of this case did it constitute an abuse of discretion as a matter of law.
Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY concur.
Order affirmed in a memorandum.