Opinion
2013-07801 Ind. No. 6868/12.
03-09-2016
The PEOPLE, etc., respondent, v. Jimmy FRANCOIS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Gamaliel Marrero of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Gamaliel Marrero of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered July 18, 2013, convicting him of robbery in the second degree, criminal possession of stolen property in the fourth degree, and reckless endangerment in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the complainant's identification testimony. The showup identification of the defendant was conducted in sufficiently close spatial and temporal proximity to the crime so as to be reasonable under the circumstances, and was not unduly suggestive (see People v. Howard, 22 N.Y.3d 388, 981 N.Y.S.2d 310, 4 N.E.3d 320; People v. Gilford, 16 N.Y.3d 864, 924 N.Y.S.2d 314, 948 N.E.2d 920; People v. Brisco, 99 N.Y.2d 596, 758 N.Y.S.2d 262, 788 N.E.2d 611).
The defendant's Brady violation claim (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215), is not preserved for appellate review (see CPL 470.052; People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233). In any event, the claim is without merit, since “evidence is not deemed to be Brady material when the defendant has knowledge of it (see People v. Fein, 18 N.Y.2d 162, 272 N.Y.S.2d 753, 219 N.E.2d 274; People v. LaRocca, 172 A.D.2d 628, 568 N.Y.S.2d 431)” (People v. Rodriguez, 223 A.D.2d 605, 606, 637 N.Y.S.2d 171). Here, the record clearly establishes that the defendant had knowledge of the evidence at issue, namely, his brother's testimony on his behalf before the grand jury (see People v. Barbera, 220 A.D.2d 601, 632 N.Y.S.2d 821).
MASTRO, J.P., DILLON, MILLER and BARROS, JJ., concur.