Opinion
November 10, 1997
Appeal from the Supreme Court, Kings County (Lott, J.).
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the prosecutor's failure to inform him of the inconsistency between the medical examiner's report and the autopsy report deprived him of a fair trial ( see, People v. Peralta, 168 A.D.2d 466; see also, People v. McKay, 162 A.D.2d 146). In any event, we find that there was no Brady violation ( see, Brady v. Maryland, 373 U.S. 83). It is axiomatic that a prosecutor is under a duty to turn over, upon the request of defense counsel, evidence favorable to the accused ( see, Brady v. Maryland, supra). However, evidence is not deemed to be Brady material when the defendant has knowledge of it or is in possession of it ( see, People v. Fein, 18 N.Y.2d 162; People v. LaRocca, 172 A.D.2d 628). Here, the record establishes that the defense counsel was in possession of the autopsy report and the medical examiner's notes prior to trial. In addition, while the People have a duty to disclose exculpatory material in their control, a defendant's constitutional right to a fair trial is not violated when, as in the present case, 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 ( see, People v. Cortijo, 70 N.Y.2d 868, 870; People v. Brown, 67 N.Y.2d 555, 559).
The sentence was not excessive ( People v. Suitte, 90 A.D.2d 80, 85-86).
Thompson, J.P., Pizzuto, Santucci and Joy, JJ., concur.