Opinion
March 27, 1995
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment, the amended judgment, and the order are affirmed.
We reject the defendant's contention that the People's failure to turn over a computer printout from the Greenpoint Men's Shelter, which would have allegedly shown that the prosecution's main witness to the shooting was in a shelter at the time of the crime, violated the principle of Brady v. Maryland ( 373 U.S. 83). In the instant case, where the evidence in question was not specifically requested by the defense, constitutional error occurs only if the undisclosed evidence was material in the sense that there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different (see, People v. Chin, 67 N.Y.2d 22, 33). The mere possibility that undisclosed evidence, which was not requested, might have helped the defense or affected the outcome of the trial does not establish materiality in the constitutional sense (see, People v. Vilardi, 76 N.Y.2d 67, 76-77, n 5; People v. Alongi, 131 A.D.2d 767, 768). In view of the strong evidence of the defendant's guilt, including the defendant's audiotaped and videotaped confession, there is no reasonable probability that the computer printout, the reliability of which is in serious question, would have resulted in an acquittal.
Furthermore, we find no Brady violation in the People's alleged failure to timely provide the defendant with a copy of the written record of information received by the police over a telephone hot-line. The evidence at issue was disclosed to the defense just prior to the pretrial hearing. Therefore, the defense was afforded an ample opportunity to utilize it effectively (see, People v. Cortijo, 70 N.Y.2d 868, 870; People v White, 178 A.D.2d 674, 675). There is no indication that an earlier disclosure would have had any effect on the outcome of the trial (see, People v. Vilardi, supra, 76 N.Y.2d 67).
Contrary to the defendant's contention the court properly admitted into evidence a photograph depicting the scene of the crime. The photograph was admitted to illustrate the testimony of the detective with respect to the location of physical and ballistics evidence. There is no indication that the photograph was admitted for the sole purpose of arousing the emotions of the jury (see, People v. Wood, 79 N.Y.2d 958, 960; People v Pobliner, 32 N.Y.2d 356, 359, cert denied 416 U.S. 905).
We decline to review the defendant's argument that Indictment No. 12706/89 should be dismissed pursuant to CPL 210.30, since the defendant relies on records which have not been included as part of the record on appeal (see, People v. Cagan, 176 A.D.2d 478; People v. Brooks, 163 A.D.2d 864). In any event appellate review is not warranted since the defendant was able to present his exculpatory evidence at trial (see, People v. Isla, 96 A.D.2d 789, 790).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Balletta, J.P., Rosenblatt, Ritter and Altman, JJ., concur.