People v. Daniels

Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.), rendered August 4, 2009. The judgment convicted defendant, upon a jury verdict, of criminal mischief in the third degree and petit larceny.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal mischief in the third degree (Penal Law § 145.05 [2]) and petit larceny (§ 155.25). Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 , 621 [1983]), we reject defendant’s contention that the evidence is legally insufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490 , 495 [1987]). Furthermore, we conclude that defendant received meaningful representation (see generally People v Baldi, 54

We agree with defendant that County Court erred in allowing the People to elicit testimony that defendant invoked his right to counsel (see People v Nicholas, 286 AD2d 861 , 862 [2001], affd 98 NY2d 749 [2002]; People v Morrice, 61 AD3d 1390 , 1391 [2009]; People v Hunt, 18 AD3d 891 , 892 [2005]), but we conclude that reversal is not required; the error is harmless beyond a reasonable doubt “inasmuch as there is no reasonable possibility that the error [ ] might have contributed to defendant’s conviction” (People v Capers, 94 AD3d 1475 , 1476 [2012], lv denied 19 NY3d 971 [2012] [internal quotation marks omitted]; see People v Kithcart, 85 AD3d 1558 , 1559-1560 [2011], lv denied 17 NY3d 818 [2011]; see generally People v Crimmins, 36 NY2d 230 , 237 [1975]). We also reject defendant’s contention that he is entitled to a new trial based on a Brady violation. “ ‘[W]hile 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 ... as evidence during his case” (People v Cortijo, 70 NY2d 868 , 870 [1987]; see People v Comfort, 60 AD3d 1298 , 1300 [2009], lv denied 12 NY3d 924 [2009]; People v Barney, 295 AD2d 1001 , 1002 [2002], lv denied 98 NY2d 766 [2002]).

Finally, we reject defendant’s contention that he is entitled to a new trial based on an alleged Rosario violation. Even assuming, arguendo, that all of the disputed evidence is Rosario material (see People v Turner, 233 AD2d 932 , 933 [1996], lv denied 89 NY2d 1102 [1997]; People v Stern, 226 AD2d 238 , 239-240 [1996], lv denied 88 NY2d 969 [1996], lv denied upon reconsideration 88 NY2d 1072 [1996]), we conclude that reversal is not warranted here. With respect to the evidence that defendant contends was not timely disclosed, we conclude that defendant failed to make a showing that there is “a reasonable possibility that the result at trial would have been different if [that] material ] had been timely disclosed” (People v Williams, 50 AD3d 1177 , 1180 [2008]; see CPL 240.75). With respect to the evidence disclosed only after trial, we conclude that defendant failed to “show[ ] ‘that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial’ ” (Williams, 50 AD3d at 1179 , quoting CPL 240.75).

Present— Centra, J.P, Fahey, Lindley, Sconiers and Whalen, JJ.