Opinion
2014-04-16
The PEOPLE, etc., respondent, v. Marvin DUBOIS, appellant.
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Gamaliel Marrero of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Gamaliel Marrero of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered June 3, 2009, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that a police witness was improperly permitted to identify him as the individual depicted on a surveillance recording of an apartment building near the scene of the crime ( seeCPL 470.05[2]; People v. Serrano, 74 A.D.3d 1104, 1106, 904 N.Y.S.2d 711). In any event, the contention is without merit ( see People v. Magin, 1 A.D.3d 1024, 1025, 767 N.Y.S.2d 366;People v. Morgan, 214 A.D.2d 809, 810, 625 N.Y.S.2d 673;People v. Russell, 165 A.D.2d 327, 332, 336, 567 N.Y.S.2d 548,affd.79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his motion for a mistrial based on a prosecution witness's brief mention of the defendant's previous arrest record ( see People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668;People v. Ray, 100 A.D.3d 933, 933–934, 954 N.Y.S.2d 199;People v. Hicks, 84 A.D.3d 1402, 924 N.Y.S.2d 551;People v. Redmon, 81 A.D.3d 752, 917 N.Y.S.2d 229). Any possible prejudice to the defendant was ameliorated when the Supreme Court sustained the defendant's objection, struck that portion of the witness's testimony, and provided a curative instruction to the jury ( see People v. Santiago, 52 N.Y.2d at 866, 437 N.Y.S.2d 75, 418 N.E.2d 668;Hall v. Potoker, 49 N.Y.2d 501, 506, 427 N.Y.S.2d 211, 403 N.E.2d 1210;People v. Ray, 100 A.D.3d at 933–934, 954 N.Y.S.2d 199), which the jury is presumed to have followed ( see People v. Townsend, 100 A.D.3d 1029, 1030, 954 N.Y.S.2d 221). If the defendant was of the view that the remedy provided was insufficient, he should have sought additional curative instructions ( see People v. Santiago, 52 N.Y.2d at 866, 437 N.Y.S.2d 75, 418 N.E.2d 668;People v. Miller, 78 A.D.3d 733, 734, 911 N.Y.S.2d 91).
The defendant's contention that the sentence imposed was improperly based on the crimes of which he was acquitted is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Harris, 101 A.D.3d 900, 954 N.Y.S.2d 920) and, in any event, is without merit ( see People v. Morgan, 27 A.D.3d 579, 810 N.Y.S.2d 369;People v. Robinson, 250 A.D.2d 629, 672 N.Y.S.2d 751). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
Contrary to the defendant's contentions in his pro se supplemental brief, the Supreme Court properly instructed the jury regarding the elements of assault in the first degree (see CJI 2d[N.Y.] Penal Law § 120.10; People v. Gatti, 277 A.D.2d 1041, 1042, 716 N.Y.S.2d 182), and the record indicates that the prosecutor acted diligently and in good faith in producing the surveillance video upon his discovery of it (see CPL 240.20[1][g], [2]; People v. Aulet, 221 A.D.2d 281, 283, 634 N.Y.S.2d 463).
The defendant's contention in his pro se supplemental brief that the surveillance video and the investigating detective's notes regarding it constituted Brady material ( see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) is contradicted by the record. That evidence did not constitute Brady material because it was not exculpatory or impeaching in nature ( see People v. Hayes, 17 N.Y.3d 46, 50, 926 N.Y.S.2d 382, 950 N.E.2d 118,cert. denied––– U.S. ––––, 132 S.Ct. 844, 181 L.Ed.2d 553;People v. Hunter, 11 N.Y.3d 1, 5, 862 N.Y.S.2d 301, 892 N.E.2d 365;People v. LaValle, 3 N.Y.3d 88, 109–110, 783 N.Y.S.2d 485, 817 N.E.2d 341). Furthermore, the defendant was not prejudiced by the prosecution's delay in turning over these items, because there was no reasonable probability that the delay contributed to the verdict ( see People v. Negron, 112 A.D.3d 741, 744, 976 N.Y.S.2d 220).
The defendant's remaining contentions, including the contentions raised in his pro se supplemental brief, are unpreserved for appellate review, and, in any event, without merit. MASTRO, J.P., BALKIN, SGROI and LASALLE, JJ., concur.