Opinion
May 12, 1992
Appeal from the Supreme Court, Bronx County (Stephen Barrett, J.).
Defendant acted as a lookout during the aborted robbery of a "crack house" apartment by two accomplices, his brother Larry Davis and a third man known only as "Bo." It was Larry Davis who fired a bullet through the apartment door at chest-high level, killing the victim. Both defendant and his brother were identified in photo arrays and in subsequent lineups.
During the trial, a female witness who had testified as to defendant's inculpatory statements had previously testified for the People in an unrelated investigation, wherein she provided evidence of a confession made to her by the defendant in that unrelated matter. Despite her testimony, that defendant was acquitted. At issue is the fact that this information was not disclosed to the present defendant, which forms the basis of his Rosario and Brady claims which were rejected by Supreme Court in its denial of defendant's CPL 440.10 motion.
Defendant has established no connection between the two cases. Further, he has failed to demonstrate that the witness' testimony in the unrelated case was fabricated, or that the testimony "relates to the subject matter of the witness's testimony" in the present case (CPL 240.44; 240.45 [1] [a]). We have previously rejected Rosario claims with respect to police reports in unrelated investigations which were of marginal value to the present investigation (People v. Gayle, 168 A.D.2d 201, lv denied 78 N.Y.2d 955); conversations of witnesses not involving the instant defendant (People v. Fridman, 162 A.D.2d 136, lv denied 76 N.Y.2d 893) and grand jury testimony in an unrelated case (People v. Fluellen, 132 A.D.2d 455, lv denied 70 N.Y.2d 874). The People's failure to disclose this information does not constitute reversible error (People v. Ortiz, 173 A.D.2d 189, lv denied 78 N.Y.2d 1129), and we reject defendant's argument, as mere speculation, that the acquittal in the unrelated case requires a conclusion that the witness' testimony in that case was fabricated. To accept such a conclusion would allow defendant to impeach the witness' credibility in a most circuitous manner.
In any event, even if some marginal relevance had been established, the eyewitness testimony precludes defendant from carrying his burden, in the post-judgment motion, of demonstrating a reasonable possibility that this evidence would have led to a different outcome of the proceedings (People v Jackson, 78 N.Y.2d 638). While it was improper to preclude testimony concerning a prosecution witness' reputation for veracity in the community (People v. Pavao, 59 N.Y.2d 282, 289), the record demonstrates that the witness was impeached in this way by other testimony and sufficiently cross-examined as to her background and character.
Defendant failed to preserve his claim that hearsay evidence was improperly introduced, thus bolstering identification evidence (People v. Fagan, 166 A.D.2d 290, lv denied 77 N.Y.2d 838). We decline to review in the interest of justice. Were we to do so, we would find there is no reasonable likelihood that the jury believed the evidence to be stronger as a result thereof (supra).
We find no basis to disturb the determination of the trial court that the substitution of proposed counsel at sentencing would have posed a conflict in the circumstances.
Concur — Rosenberger, J.P., Wallach, Ross, Asch and Kassal, JJ.