Opinion
Filed May 2, 2001.
Appeal from Judgment of Erie County Court, Drury, J. Murder, 2nd Degree.
PRESENT: GREEN, J.P., HAYES, SCUDDER, BURNS AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25) and criminal possession of a weapon in the second degree (Penal Law former § 265.03). We reject his contention that the People had a duty to investigate whether their Brady obligations were implicated by information that the victim and the principal prosecution witness were subjects of a drug enforcement administration (DEA) task force investigation. Defendant does not allege that there was a joint investigation between the local police and the DEA. Thus, it cannot be said that the prosecutor had control or constructive possession of any alleged Brady material in the possession of the DEA, nor did the prosecutor have a duty to inquire about any such material ( see, People v. Santorelli, 95 N.Y.2d 412, 421). Defendant further contends that he was denied a fair trial by prosecutorial misconduct on summation based upon the prosecutor's improper reference to a person in the courtroom. We disagree. County Court issued a curative instruction, and the improper reference was not so egregious as to deny defendant a fair trial ( see, People v. Parsons, 275 A.D.2d 933, 935, lv denied 95 N.Y.2d 937). The court did not abuse its discretion in denying defendant's motion for a mistrial based on the prosecutor's bolstering of the identification testimony of an eyewitness ( see generally, People v. Ortiz, 54 N.Y.2d 288, 292). Defendant declined the court's offer to issue a curative instruction and, in view of the strong evidence of identity, reversal is not required ( see, People v. Ford, 262 A.D.2d 1052, lv denied 93 N.Y.2d 1044; People v. Lombardo, 195 A.D.2d 965, 966, lv denied 82 N.Y.2d 806). The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495), and the sentence is neither unduly harsh nor severe.