Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Hector GONZALEZ, also Known as “Indio,” Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.Hector Gonzalez, Defendant–Appellant Pro Se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.Hector Gonzalez, Defendant–Appellant Pro Se.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a bench trial of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). County Court properly refused to suppress the testimony of a witness who identified defendant on the ground that the photo array presented to her was unduly suggestive. “Because ‘the subjects depicted in the photo array [were] sufficiently similar in appearance so that the viewer's attention [was] not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection,’ the photo array was not unduly suggestive” ( People v. Weston, 83 A.D.3d 1511, 1511, 921 N.Y.S.2d 754, lv. denied 17 N.Y.3d 823, 929 N.Y.S.2d 812, 954 N.E.2d 103). The court also properly determined that a witness who testified concerning inculpatory statements made to him by defendant while they were both incarcerated was not acting as an agent of the police when defendant made the statements ( see People v. McCray, 66 A.D.3d 1338, 1339, 886 N.Y.S.2d 519, lv. denied 13 N.Y.3d 908, 895 N.Y.S.2d 323, 922 N.E.2d 912, 14 N.Y.3d 803, 899 N.Y.S.2d 137, 925 N.E.2d 941; see generally People v. Cardona, 41 N.Y.2d 333, 335, 392 N.Y.S.2d 606, 360 N.E.2d 1306). The evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction and, viewing the evidence in light of the elements of the crimes in this bench trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We reject defendant's further contention that the People failed to disclose Brady material in a timely manner. Even assuming, arguendo, that the witness statement at issue was exculpatory, we conclude that the alleged Brady violation does not require reversal because defendant received the statement “ ‘as part of the Rosario material provided to him and was given a meaningful opportunity to use the exculpatory evidence’ ” ( People v. Green, 74 A.D.3d 1899, 1901, 903 N.Y.S.2d 844, lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821). Defendant waived his contention that he was denied his right to present a defense based upon alleged attempts by the police to intimidate a defense witness, inasmuch as the court granted the only relief sought by defendant in connection therewith and defendant did not further object ( see Delong v. County of Chautauqua [appeal No. 2], 71 A.D.3d 1580, 1580–1581, 896 N.Y.S.2d 791; see generally People v. Kulakov, 72 A.D.3d 1271, 1273–1274, 898 N.Y.S.2d 373, lv. denied 15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057, lv. dismissed 16 N.Y.3d 896, 926 N.Y.S.2d 32, 949 N.E.2d 980; People v. Miller, 37 A.D.3d 1071, 829 N.Y.S.2d 345). The sentence is not unduly harsh or severe. Finally, we have examined defendant's contentions in his pro se supplemental brief and conclude that none requires reversal or modification of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.