fair trial defense in New York

2023Because the defendant was deprived of a fair trial by this error, reversal is required ( see US Const 6th, 14th Amends; People v Crimmins , 36 NY2d 230, 237-238 ).

2022As set forth below, I disagree with the majority's determination that the improper actions and interjections of the Supreme Court fall within the realm of harmless error subject to the overwhelming evidence standard and outside of the fair trial analysis ( see People v Nelson , 27 NY3d 361, 371-372 ; People v Crimmins , 36 NY2d at 238 ).

2021Nevertheless, defendant was not deprived of a fair trial by that error because, although " 'the People unquestionably have a duty to disclose exculpatory material in their control,' a defendant's constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witness or as evidence during his case" ( People v Cortijo , 70 NY2d 868, 870 [1987]; see People v Daniels , 115 AD3d 1364, 1365 [4th Dept 2014], lv denied 23 NY3d 1019 [2014]).

2015Untimely or delayed disclosure will not prejudice a defendant or deprive him or her of a fair trial where the defense is provided with “a meaningful opportunity to use the allegedly *719 exculpatory material to cross-examine the People’s witnesses or as evidence during his [or her] case” (People v Cortijo, 70 NY2d 868, 870 [1987]; see People v Serrano, 99 AD3d at 1107; People v Williams, 50 AD3d at 1179 ).

2020Moreover, "[u]ntimely or delayed disclosure will not prejudice a defendant or deprive him or her of a fair trial where the defense is provided with a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his [or her] case' " ( People v Carter , 131 AD3d 717, 718-719 [3d Dept 2015], lv denied 26 NY3d 1007 [2015]).

2017“Untimely or delayed disclosure will not prejudice a defendant or deprive him or her of a fair trial where the defense is provided with a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his or her case” (People v Carter, 131 AD3d 717, 718-719 [2015] [internal quotation marks, brackets and citations omitted], lv denied 26 NY3d 1007 [2015]; see People v Osborne, 91 NY2d 827, 828-829 [1997]; People v Serrano, 99 AD3d 1105 , 1106 [2012], lv denied 20 NY3d 1014 [2013]).

2025Even assuming, arguendo, that some of the statements went beyond that exception, we conclude that defendant was not deprived of a fair trial because the error was harmless ( see Rath , 192 AD3d at 1602 ; see generally People v Ortega , 15 NY3d 610, 619-620 [2010]).

2021To the extent that some of the statements went beyond that exception, defendant was not deprived of a fair trial because the error was harmless ( see Ortega , 15 NY3d at 619-620 ).

2017“Untimely or delayed disclosure will not prejudice a defendant or deprive him or her of a fair trial where the defense is provided with a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his or her case” (People v Carter, 131 AD3d 717, 718-719 [2015] [internal quotation marks, brackets and citations omitted], lv denied 26 NY3d 1007 [2015]; see People v Osborne, 91 NY2d 827, 828-829 [1997]; People v Serrano, 99 AD3d 1105 , 1106 [2012], lv denied 20 NY3d 1014 [2013]).

2015Untimely or delayed disclosure will not prejudice a defendant or deprive him or her of a fair trial where the defense is provided with “a meaningful opportunity to use the allegedly *719 exculpatory material to cross-examine the People’s witnesses or as evidence during his [or her] case” (People v Cortijo, 70 NY2d 868, 870 [1987]; see People v Serrano, 99 AD3d at 1107; People v Williams, 50 AD3d at 1179 ).

2025Finally, contrary to defendant's related contention, defense counsel was not ineffective for failing to object to the statements as exceeding the scope of the exception ( see Mirabella , 126 AD3d at 1368 ; see generally Caban , 5 NY3d at 152 ).

2024"In a civil trial, trial counsel is afforded wide latitude in presenting arguments to a jury in summation" ( Acosta v City of New York , 153 AD3d at 767 [internal quotation marks omitted]).

2023Inasmuch as defendant was not deprived of a fair trial by the error of the prosecutor, defense counsel's failure to preserve his contention did not deprive him of effective assistance of counsel ( see People v Palmer , 204 AD3d 1512, 1514-1515 [4th Dept 2022], lv denied 38 NY3d 1190 [2022]; People v Bagley , 194 AD3d 1475, 1477 [4th Dept 2021], lv denied 37 NY3d 990 [2021]).

2023Inasmuch as defendant was not deprived of a fair trial by the error of the prosecutor, defense counsel's failure to preserve his contention did not deprive him of effective assistance of counsel ( see People v Palmer , 204 AD3d 1512, 1514-1515 [4th Dept 2022], lv denied 38 NY3d 1190 [2022]; People v Bagley , 194 AD3d 1475, 1477 [4th Dept 2021], lv denied 37 NY3d 990 [2021]).

2022"In cases where there has been no pretrial identification procedure or the witness is unable to render a positive identification of the defendant, and the defendant is identified in court for the first time, the defendant is not deprived of a fair trial because the defense counsel is able to explore weaknesses and suggestiveness of the identification in front of the jury" ( People v Johnson , 197 AD3d 725 , 727 [2d Dept 2021] [internal quotation marks and citations omitted], lv denied 37 NY3d 1097 [2021]; see People v Madison , 8 AD3d 956, 957 [4th Dept 2004], lv denied 3 NY3d 709 [2004]).

2022"In cases where there has been no pretrial identification procedure or the witness is unable to render a positive identification of the defendant, and the defendant is identified in court for the first time, the defendant is not deprived of a fair trial because the defense counsel is able to explore weaknesses and suggestiveness of the identification in front of the jury" ( People v Johnson , 197 AD3d 725 , 727 [2d Dept 2021] [internal quotation marks and citations omitted], lv denied 37 NY3d 1097 [2021]; see People v Madison , 8 AD3d 956, 957 [4th Dept 2004], lv denied 3 NY3d 709 [2004]).

2021As a preliminary matter, we conclude that plaintiff preserved that contention for our review by lodging a timely objection and unsuccessfully seeking a curative instruction ( cf. Country Park Child Care, Inc. v Smartdesign Architecture [*3]PLLC , 129 AD3d 1636, 1637 [4th Dept 2015]; Lucian v Schwartz , 55 AD3d 687, 689 [2d Dept 2008], lv denied 12 NY3d 703 [2009]).

2021Nevertheless, defendant was not deprived of a fair trial by that error because, although " 'the People unquestionably have a duty to disclose exculpatory material in their control,' a defendant's constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witness or as evidence during his case" ( People v Cortijo , 70 NY2d 868, 870 [1987]; see People v Daniels , 115 AD3d 1364, 1365 [4th Dept 2014], lv denied 23 NY3d 1019 [2014]).

2021Even assuming, arguendo, that the Mental Health Court referral was in the People's possession and constituted material impeachment evidence that was favorable to defendant ( see People v Giuca , 33 NY3d 462 , 473 [2019]), we conclude that defendant was not deprived of a fair trial because defense counsel was able to obtain the information regarding the referral prior to trial and had "a meaningful opportunity to use th[at] allegedly exculpatory evidence to cross-examine the [eyewitness]" ( People v Hines , 132 AD3d 1385 , 1386 [4th Dept 2015], lv denied 26 NY3d 1109 [2016]; see People v Concep

2021As a preliminary matter, we conclude that plaintiff preserved that contention for our review by lodging a timely objection and unsuccessfully seeking a curative instruction ( cf. Country Park Child Care, Inc. v Smartdesign Architecture [*3]PLLC , 129 AD3d 1636, 1637 [4th Dept 2015]; Lucian v Schwartz , 55 AD3d 687, 689 [2d Dept 2008], lv denied 12 NY3d 703 [2009]).

2019In cases where there has been no pretrial identification procedure or the witness is unable to render a positive identification of the defendant, and the defendant is identified in court for the first time, "the defendant is not deprived of a fair trial because the defense counsel is able to explore weaknesses and suggestiveness of the identification in front of the jury" ( People v Medina , 208 AD2d 771, 772 ; see People v Lombardo , 151 AD3d 887, 888 ; People v Alexander , 227 AD2d 498, 498-499 ).

2019Garnett v Undercover Officer C0039 , 838 F3d 265, 278-279 [2d Cir 2016]), which should not have been dismissed prior to the conclusion of plaintiff's case in chief.

2019It is well settled that nonspecific testimony about a child victim's report of sexual abuse does not " improperly bolster[ ] the victim's version of events [when] admitted not for its truth but for the narrow purpose of explaining an officer's actions and the sequence of events in an investigation, and the testimony is accompanied by an appropriate limiting instruction' " ( People v Ludwig , 24 NY3d 221, 231-232 [2014]).

2018By failing to object to the court's jury instruction, defendant failed to preserve for our review his contention that he was deprived of a fair trial by that instruction ( see CPL 470.05 [2]; see also People v Green , 35 AD3d 1211, 1212 [4th Dept 2006], lv denied 8 NY3d 985 [2007]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]).