Opinion
July 27, 2000.
Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered January 16, 1996, upon a verdict convicting defendant of the crime of attempted murder in the second degree, assault in the second degree and criminal possession of a weapon in the third degree.
John P. Newman, Troy, for appellant.
Gerald F. Mollen, District Attorney (Joann Rose Parry of counsel), Binghamton, for respondent.
Before: Cardona, P.J., Mercure, Peters, Carpinello and Graffeo, JJ.
MEMORANDUM AND ORDER
On the evening of May 5, 1995, defendant and Scott Smith (hereinafter the victim) were patronizing a local bar in the Village of Endicott, Broome County, when they had an argument over the victim's inadvertent physical contact with defendant's girlfriend. Following this incident, which was broken up by the bar owner, defendant left and returned shortly thereafter in an agitated state. Defendant then instigated a second altercation wherein he threatened to kill and/or cut the victim and proceeded to inflict two superficial stab wounds to the victim's chest and a deep wound to his left arm. Several people witnessed the incident and heard defendant's threats. One patron specifically testified that she observed what appeared to be a knife during the fight.
Although admitting that a fight erupted at the bar, the defense theory at trial was that defendant did not intend to kill the victim, that defendant did not possess a knife and that the cuts sustained by the victim were the result of his coming into contact with broken glass on the bar. The jury obviously disagreed, finding defendant guilty of attempted murder in the second degree, assault in the second degree and criminal possession of a weapon in the third degree as a result of this incident. Following an unsuccessful motion to set aside the verdict pursuant to CPL 330.30, defendant was sentenced as a second felony offender to concurrent prison terms of 10 to 20 years on the attempted murder conviction and 3 to 6 years on each of the remaining convictions.
We reject the sole contention advanced by defendant on appeal, namely, that his convictions should be reversed on the ground that the prosecutor failed to comply with the mandates of CPL 240.45 (1) (b) and Brady v. Maryland ( 373 U.S. 83) by failing to turn over information that the victim had a prior misdemeanor conviction for aggravated unlicensed operation of a motor vehicle in the second degree. Insofar as CPL 240.45 (1) (b) is implicated, we note that the statute only requires that a prosecutor disclose a record of a judgment of conviction of a prosecution witness "if the record of conviction is known by the prosecutor to exist" (CPL 240.45 [b]; see, People v. Sanchez, 257 A.D.2d 451, lv denied 93 N.Y.2d 878; People v. Clark, 228 A.D.2d 326, lv denied 89 N.Y.2d 863; People v. Hilton, 210 A.D.2d 180, lv denied 85 N.Y.2d 939; People v. Clark, 194 A.D.2d 868, lv denied 82 N.Y.2d 752). Here, it was established that the prosecutor did not know about the victim's misdemeanor conviction either prior to or during the trial; thus, no violation of the statute has been established (see, People v. Hernandez, 210 A.D.2d 535, 536, lv denied 84 N.Y.2d 1032).
For these same reasons, there was no Brady violation since the duty to disclose exculpatory material arises only with respect to information in the People's possession (see, People v. Forbes, 190 A.D.2d 1005, 1006, lv denied 81 N.Y.2d 970). As aptly noted inPeople v. Forbes, "[i]nasmuch as the People were unaware of the record of the witness' conviction before or at the time of trial, their failure to disclose it did not violate Brady" (id., at 1006). In any event, upon our review of the record, which demonstrates overwhelming proof of defendant's guilt, we find that there is no reasonable possibility that this error contributed to the verdict (see, People v. Pressley, 91 N.Y.2d 825, 827; see also,People v. Robinson, 267 A.D.2d 981; People v. Samuels, 257 A.D.2d 401;People v. Hernandez, supra). The proof included disinterested eyewitnesses who testified that defendant assaulted the victim after threatening to kill him. One witness specifically observed what appeared to be a knife in the course of the brawl. Moreover, there was medical testimony that the injuries inflicted were consistent with the victim having been stabbed with a knife or other sharp instrument and were unlikely to have been caused by his falling onto glass.
ORDERED that the judgment is affirmed.