People committed a Brady violation in New York

2015Defendant failed to preserve for our review his contention that the People committed a Brady violation by failing to produce the recording of the victim’s 911 call prior to the suppression hearing, inasmuch as he failed to move to reopen the suppression hearing when the recording was produced (see People v Whitted, 117 AD3d 1179, 1182 [2014], lv denied 23 NY3d 1026 [2014]).

2015Defendant failed to preserve for our review his contention that the People committed a Brady violation by failing to produce the recording of the victim’s 911 call prior to the suppression hearing, inasmuch as he failed to move to reopen the suppression hearing when the recording was produced (see People v Whitted, 117 AD3d 1179, 1182 [2014], lv denied 23 NY3d 1026 [2014]).

2018As limited by the allegations in his motion, defendant had to prove that the People committed a Brady violation by showing "that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ( People v Fuentes , 12 NY3d 259, 263 [2009]; see People v Serrano , 99 AD3d 1105 , 1106 [2012], lv denied 20 NY3d 1014 [2013]).

2018The People have an obligation to disclose exculpatory evidence in their possession that is favorable to the defendant and material to his or her guilt or innocence ( see id. at 87 ; People v Fuentes, 12 NY3d 259, 263 ; People v Scott, 88 NY2d 888, 890 ).

2015Defendant’s contention that the People committed a Rosario violation by failing to preserve a police officer’s notes is also unpreserved because defendant did not object to the destruction of the notes or seek a sanction (see People v Rogelio, 79 NY2d 843, 844 [1992]; People v Sanzotta, 191 AD2d 1032, 1032-1033 [1993]).

2015Defendant’s contention that the People committed a Rosario violation by failing to preserve a police officer’s notes is also unpreserved because defendant did not object to the destruction of the notes or seek a sanction (see People v Rogelio, 79 NY2d 843, 844 [1992]; People v Sanzotta, 191 AD2d 1032, 1032-1033 [1993]).

2015Defendant’s contention that the People committed a Rosario violation by failing to preserve a police officer’s notes is also unpreserved because defendant did not object to the destruction of the notes or seek a sanction (see People v Rogelio, 79 NY2d 843, 844 [1992]; People v Sanzotta, 191 AD2d 1032, 1032-1033 [1993]).

2015Defendant’s contention that the People committed a Rosario violation by failing to preserve a police officer’s notes is also unpreserved because defendant did not object to the destruction of the notes or seek a sanction (see People v Rogelio, 79 NY2d 843, 844 [1992]; People v Sanzotta, 191 AD2d 1032, 1032-1033 [1993]).

2017By failing to seek a sanction or raise the issue again after the court deferred discussion of the failure to disclose the notes, “any claim for relief defendant might have as a result of the possible violation of his Rosario rights must be deemed abandoned” (People v Graves, 85 NY2d 1024, 1027 [1995]).

2017By failing to seek a sanction or raise the issue again after the court deferred discussion of the failure to disclose the notes, “any claim for relief defendant might have as a result of the possible violation of his Rosario rights must be deemed abandoned” (People v Graves, 85 NY2d 1024, 1027 [1995]).

2017Defendant failed to preserve for our review his contention that the People committed a Brady violation by failing to disclose the notes of a police officer who interviewed the victim (see People v Tobias, 273 AD2d 925, 926 [2000], lv denied 95 NY2d 908 [2000]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

2017Defendant failed to preserve for our review his contention that the People committed a Brady violation by failing to disclose the notes of a police officer who interviewed the victim (see People v Tobias, 273 AD2d 925, 926 [2000], lv denied 95 NY2d 908 [2000]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

2018Defendant's claim, raised in his CPL 330.30 motion, that the People committed a Brady violation is without merit inasmuch as the record does not indicate that the requested evidence even existed ( see People v Stacconi , 151 AD3d 1395, 1397 [2017]).

2017Defendant’s contention that the People committed a Brady violation by failing to timely disclose impeachment information regarding the CI is unpreserved for our review (see People v Ennis, 11 NY3d 403 , 414 n 2 [2008], cert denied 556 US 1240 [2009]; People v Stacconi, 151 AD3d 1395, 1397 [2017]; People v Hotaling, 135 AD3d 1171, 1172 [2016]) and, in any event, without merit.

2014We note at the outset that defendant’s brief addresses only his claims concerning actual innocence and ineffective assistance of counsel, and we thus deem abandoned his contention that the People committed a Brady violation (see People v Hoffler, 74 AD3d 1632 , 1633 n 2 [2010], Iv denied 17 NY3d 859 [2011]; see also People v Dombrowski, 87 AD3d 1267, 1267 [2011]).

2014We note at the outset that defendant’s brief addresses only his claims concerning actual innocence and ineffective assistance of counsel, and we thus deem abandoned his contention that the People committed a Brady violation (see People v Hoffler, 74 AD3d 1632 , 1633 n 2 [2010], Iv denied 17 NY3d 859 [2011]; see also People v Dombrowski, 87 AD3d 1267, 1267 [2011]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2021Defendant's contention that the People committed a Brady violation by failing to promptly disclose that a second confidential informant who engaged in the July 2017 controlled buys (hereinafter CI No. 2) would not be testifying at trial is, as conceded by defendant, unpreserved for review ( see People v Fort , 146 AD3d 1017, 1019 [2017], lv denied 29 NY3d 1031 [2017]; People v Lundy , 48 AD3d 1046, 1047 [2008], lv denied 10 NY3d 936 [2008]).

2018The defendant's contention that the People committed a Brady violation ( see Brady v Maryland , 373 US 83 ) by failing to disclose that a witness had collected a $2,000 reward from Crime Stoppers prior to trial is unpreserved for appellate review because it was not raised before the trial court ( see People v Fort , 146 AD3d 1017, 1019 ; People v Thompson , 54 AD3d 975, 975-976 ).

2014Here, to the extent that petitioner contends that Supreme Court abused its discretion in failing to adhere to the plea agreement, that his pleas of guilty and waiver of the right to appeal were involuntary, and that the People committed a Brady violation, we conclude that those contentions could have been raised by a direct appeal from the judgment of conviction or by way of a CPL article 440 motion and thus are not properly the subject of a CPLR article 78 petition (see Smith, 109 AD3d at 1113 ; Matter of Aarismaa v Bender, 108 AD3d 1203, 1204 [2013]).

2014Here, to the extent that petitioner contends that Supreme Court abused its discretion in failing to adhere to the plea agreement, that his pleas of guilty and waiver of the right to appeal were involuntary, and that the People committed a Brady violation, we conclude that those contentions could have been raised by a direct appeal from the judgment of conviction or by way of a CPL article 440 motion and thus are not properly the subject of a CPLR article 78 petition (see Smith, 109 AD3d at 1113 ; Matter of Aarismaa v Bender, 108 AD3d 1203, 1204 [2013]).

2014With respect to petitioner’s claim for relief in the nature of mandamus compelling Supreme Court to correct the uniform sentence and commitment and to render a decision on petitioner’s pending CPL article 440 motion, we conclude that “the extraordinary remedy of mandamus does not lie . . . because petitioner has failed to establish a clear legal right to the relief sought or that the relief sought involves the performance of a purely ministerial act” (Matter of Platten v Dadd, 38 AD3d 1216, 1217 [2007], lv denied 9 NY3d 802 [2007]).

2014With respect to petitioner’s claim for relief in the nature of mandamus compelling Supreme Court to correct the uniform sentence and commitment and to render a decision on petitioner’s pending CPL article 440 motion, we conclude that “the extraordinary remedy of mandamus does not lie . . . because petitioner has failed to establish a clear legal right to the relief sought or that the relief sought involves the performance of a purely ministerial act” (Matter of Platten v Dadd, 38 AD3d 1216, 1217 [2007], lv denied 9 NY3d 802 [2007]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2013Moreover, “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 witnesses or as evidence during his case” (People v Morrison, 90 AD3d 1554, 1555 [2011], lv denied 19 NY3d 1028 [2012], reconsideration denied 20 NY3d 934 [2012] [internal quotation marks omitted]).

2013Moreover, “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 witnesses or as evidence during his case” (People v Morrison, 90 AD3d 1554, 1555 [2011], lv denied 19 NY3d 1028 [2012], reconsideration denied 20 NY3d 934 [2012] [internal quotation marks omitted]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2013Defendant’s contention that the People committed a Brady violation is also not preserved for our review (see People v Jacobs, 71 AD3d 693, 693 [2010], lv denied 14 NY3d 888 [2010]; People v Caswell, 56 AD3d 1300 , 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied 12 NY3d 781 [2009]) and, in any event, lacks merit (see People v Griffin, 48 AD3d 894, 895 [2008], lv denied 10 NY3d 959 [2008]; see also People v Dizak, 93 AD3d 1182, 1184 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]).

2011In any event, that contention is without merit because the DNA report was not exculpatory in nature (see People v Wright, 43 AD3d 1359, 1360 , lv denied 9 NY3d 1011 ; People v Scott, 32 AD3d 1178, 1179 , lv denied 8 NY3d 884 ; see also People v Forbes, 190 AD2d 1005 , lv denied 81 NY2d 970 ).

2011In any event, that contention is without merit because the DNA report was not exculpatory in nature (see People v Wright, 43 AD3d 1359, 1360 [2007], lv denied 9 NY3d 1011 [2007]; People v Scott, 32 AD3d 1178, 1179 [2006], lv denied 8 NY3d 884 [2007]; see also People v Forbes, 190 AD2d 1005 [1993], lv denied 81 NY2d 970 [1993]).

2023Footnote 3: Defendant argues that the People committed a Brady violation when they failed to disclose a supplemental detective's report, but he also concedes that said report was not discoverable pursuant to the discovery rules in place at the time ( see CPL former 240.20), and, in any case, such argument is unpreserved as defendant failed to raise it in his motion papers ( see People v Kimball , 213 AD3d 1028, 1030-1031 [3d Dept 2023], lv denied 40 NY3d 929 [2023]; People v Minaya , 206 AD3d 1161 , 1162 [3d Dept 2022]).

2023Footnote 3: Defendant argues that the People committed a Brady violation when they failed to disclose a supplemental detective's report, but he also concedes that said report was not discoverable pursuant to the discovery rules in place at the time ( see CPL former 240.20), and, in any case, such argument is unpreserved as defendant failed to raise it in his motion papers ( see People v Kimball , 213 AD3d 1028, 1030-1031 [3d Dept 2023], lv denied 40 NY3d 929 [2023]; People v Minaya , 206 AD3d 1161 , 1162 [3d Dept 2022]).

2025The defendant's contention, raised in his pro se supplemental brief, that the People committed a Brady violation ( see Brady v Maryland , 373 US 83 ) is unpreserved for appellate review ( see People v Wright , 166 AD3d 1022 , 1022-1023) and, in any event, without merit.

2020Defendant also contends that the People committed a Brady violation ( see Brady v Maryland , 373 US 83 [1963]) by not providing the Center's report until after his guilty plea.

2018The defendant's contention that the People committed a Brady violation ( see Brady v Maryland , 373 US 83 ) by failing to disclose that a witness had collected a $2,000 reward from Crime Stoppers prior to trial is unpreserved for appellate review because it was not raised before the trial court ( see People v Fort , 146 AD3d 1017, 1019 ; People v Thompson , 54 AD3d 975, 975-976 ).

2010To the extent that defendant may be deemed to contend that the People committed a Brady violation by failing to provide him with the results of the polygraph test allegedly administered during the course of his interrogation, we conclude that his contention is unpreserved for our review (see People v Thompson, 54 AD3d 975, 976 [2008], lv denied 11 NY3d 858 [2008]).

2018As limited by the allegations in his motion, defendant had to prove that the People committed a Brady violation by showing "that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material" ( People v Fuentes , 12 NY3d 259, 263 [2009]; see People v Serrano , 99 AD3d 1105 , 1106 [2012], lv denied 20 NY3d 1014 [2013]).

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]).