Opinion
June 30, 1998
Appeal from the Supreme Court, Bronx County (John Stackhouse, J.).
Defendant is not entitled to a new trial pursuant to Brady v. Maryland ( 373 U.S. 83) since there is no reasonable possibility that disclosure of potential impeachment material contained in the eyewitness's Grand Jury testimony in an unrelated case, which material was constructively possessed by the prosecutor, could have affected the verdict herein (see, People v. Vilardi, 76 N.Y.2d 67). Even if the eyewitness's various unlawful acts committed at the age of 13, for which he was in no actual danger of prosecution and for which he accordingly received no express or implied promises of leniency, had been disclosed and defendant had cross-examined the witness about them, there was no reasonable possibility that defendant would have been acquitted. The surviving victim unhesitatingly identified defendant at trial. Although the victim made a misidentification at a lineup that included defendant, that error was explained by evidence that defendant's appearance had changed between the time of the incident and the lineup. While the undisclosed information might have impeached the general character of the eyewitness, it would not have served to discredit his independent identification testimony in this case. We have reviewed defendant's remaining contentions and find them to be without merit.
Concur — Ellerin, J. P., Tom, Mazzarelli and Saxe, JJ.