Opinion
No. 41.
Argued March 22, 2010.
Decided May 4, 2010.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered December 23, 2008. The Appellate Division (1) modified, on the law, an order of the Nassau County Court (George R. Peck, J.), which, after a hearing, had denied defendant's motion pursuant to CPL 440.10 to vacate a judgment convicting him, upon a jury verdict, of robbery in the first degree (six counts), assault in the first degree (two counts), and attempted robbery in the first degree (two counts), and (2) remitted the matter to County Court for a new trial on counts one through six and count eight of the indictment. The modification consisted of deleting the provision of the County Court order that had denied that branch of defendant's motion to vacate the portion of the judgment convicting defendant of robbery in the first degree under counts one through six of the indictment, and assault in the first degree under count eight of the indictment, substituting therefor a provision granting that branch of defendant's motion and vacating the sentences imposed thereon. The Appellate Division affirmed the order as modified.
Defendant was charged in a single indictment with robbery and assault in connection with an incident at an off-track betting corporation site on January 14, 2001, and with attempted robbery and assault in connection with another incident at a gas station on February 26, 2001.
People v Daly, 57 AD3d 914, affirmed.
Law Offices of Thomas E. Liotti, Garden City ( Thomas E. Liotti and Drummond C. Smith of counsel), for appellant.
Kathleen M. Rice, District Attorney, Mineola ( Andrea M. DiGregorio and Tammy J. Smiley of counsel), for respondent.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
Whether violations of People v Rosario ( 9 NY2d 286) and/or Brady v Maryland ( 373 US 83), resulting in the reversal of convictions on certain counts, also require reversal of convictions on other, jointly tried counts is a question to be resolved on a case-by-case basis. Reversal of the jointly tried counts is required only if there is a "reasonable possibility that the evidence supporting the . . . tainted counts influenced the guilty verdicts on the other [counts]" ( People v Baghai-Kermani, 84 NY2d 525, 532).
Here, there is no reasonable possibility that the evidence supporting the tainted counts, which related to a robbery and shooting at an off-track betting parlor, had a spillover effect on the other guilty verdicts, relating to an attempted robbery and shooting at a gas station. The documents that the People failed to disclose related exclusively to the off-track betting parlor counts. Moreover, there was strong, independent proof of the defendant's guilt on the gas station counts, including evidence that the defendant's revolver was the source of the bullet removed from the shooting victim; that the owner of the gas station and the victim identified defendant; that the owner, the victim and an attendant all recognized the perpetrator as a person they had previously seen at the gas station, who drove a pickup truck with the same identifying features as the defendant's truck; and that the defendant was identified in a lineup as the perpetrator of the gas station crimes. A thorough review of the record reveals no reasonable possibility that the Rosario and Brady violations had an impact on defendant's ability to defend against the gas station counts or otherwise influenced the verdicts on those counts.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
Order affirmed in a memorandum.