Opinion
97 KA 17-00935
06-12-2020
The PEOPLE of the State of New York, Respondent, v. Clement G. HILL, Defendant-appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree ( Penal Law § 130.65 [3] ) and endangering the welfare of a child (§ 260.10 [1] ). We affirm.
We reject defendant's contention that a new trial is warranted because the People failed to disclose Brady material in a timely manner. "Untimely or delayed disclosure will not prejudice a defendant or deprive him or her of a fair trial where[, as here,] the defense is provided with a meaningful opportunity to use the allegedly exculpatory [or impeaching] material to cross-examine the People's witnesses or as evidence during his [or her] case" ( People v. Thomas , 158 A.D.3d 1135, 1135, 70 N.Y.S.3d 695 [4th Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 110, 103 N.E.3d 1257 [2018] [internal quotation marks omitted]; see People v. Cortijo , 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987] ). Contrary to defendant's contention, there is no "reasonable possibility that the outcome of the trial would have differed had the [information] been [disclosed sooner]" ( People v. Scott , 88 N.Y.2d 888, 891, 644 N.Y.S.2d 913, 667 N.E.2d 923 [1996] ; see Thomas , 158 A.D.3d at 1135-1136, 70 N.Y.S.3d 695 ). We also reject defendant's contention that Supreme Court erred in precluding him from presenting evidence with respect to the victim's sexual history pursuant to the Rape Shield Law (see CPL 60.42 ). We conclude that the court did not abuse its discretion in refusing to apply the exception set forth in CPL 60.42 (5) (see People v. Williams , 61 A.D.3d 1383, 1383, 879 N.Y.S.2d 264 [4th Dept. 2009], lv denied 13 N.Y.3d 751, 886 N.Y.S.2d 105, 914 N.E.2d 1023 [2009] ).
Defendant further contends that reversal is required because pretrial publicity deprived him of a fair trial. We conclude that defendant's contention lacks merit inasmuch as the record "does not support the conclusion that pretrial publicity rendered it impossible to select impartial jurors" ( People v. Keefer , 197 A.D.2d 915, 915, 602 N.Y.S.2d 268 [4th Dept. 1993], lv denied 82 N.Y.2d 897, 610 N.Y.S.2d 164, 632 N.E.2d 474 [1993] ; see People v. Pepper , 59 N.Y.2d 353, 358, 465 N.Y.S.2d 850, 452 N.E.2d 1178 [1983] ; People v. Taylor , 151 A.D.2d 1029, 1029, 542 N.Y.S.2d 92 [4th Dept. 1989], lv denied 74 N.Y.2d 900, 548 N.Y.S.2d 433, 547 N.E.2d 960 [1989] ).
Defendant failed to preserve for our review all but one of his present claims with respect to alleged instances of prosecutorial misconduct on summation (see CPL 470.05 [2] ) and, in any event, we conclude that "[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial" ( People v. Resto , 147 A.D.3d 1331, 1333, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] [internal quotation marks omitted] ).
Finally, we conclude that the sentence is not unduly harsh or severe, and we decline defendant's request to exercise our power to reduce the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ).