Opinion
November 30, 1992
Appeal from the County Court, Nassau County (Baker, J.).
Ordered that the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (5).
The defendant's contention that he is entitled to a new trial because the People withheld Brady material until the middle of the trial (see, Brady v Maryland, 373 U.S. 83) is without merit. Brady material is defined as information in the prosecutor's possession that is both favorable and material to the defense. We find that the information allegedly withheld here does not fall within the rule enunciated in Brady, as it could not be considered exculpatory (see, People v Vilardi, 76 N.Y.2d 67; People v Rushin, 172 A.D.2d 571). In any event, the defendant received the material at a time when he had a meaningful opportunity to use it in his defense (see, People v Cortijo, 70 N.Y.2d 868).
The defendant also contends that several prejudicial remarks of the prosecutor in summation warrant reversal. We find that while some of the prosecutor's comments warrant criticism, they were not so prejudicial as to warrant reversal of the judgment of conviction (see, People v Galloway, 54 N.Y.2d 396; People v Torres, 121 A.D.2d 663). The prosecutor did not improperly vouch for his case or express his personal belief as to the truth or falsity of the evidence (see, People v Bailey, 58 N.Y.2d 272). Although the prosecutor mentioned in his summation that the defendant fled the scene like a coward after firing the shots, in violation of the trial court's earlier directive not to argue flight as evidence of consciousness of guilt, in light of the defense counsel's reference to the defendant's flight in his summation and the overwhelming evidence of the defendant's guilt, this error does not warrant a reversal of his conviction.
We have considered the defendant's remaining contentions and find that they are without merit. Mangano, P.J., Thompson, Eiber and Ritter, JJ., concur.