Opinion
KA 00-00703.
December 31, 2003.
Appeal from a judgment of Oneida County Court (Dwyer, J.), entered November 18, 1999, convicting defendant after a jury trial of murder in the second degree and robbery in the first degree (two counts).
PETER J. DI GIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
BOBBY HENDRICKS, DEFENDANT-APPELLANT PRO SE.
MICHAEL A. ARCURI, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25) and two counts of robbery in the first degree (§ 160.15 [1], [2]). Defendant contends that he was denied a fair trial when the prosecutor failed to correct the testimony of a witness that she had not received a benefit in exchange for her testimony. The People disclosed in their response to defendant's discovery demand that "the People have agreed to grant favorable treatment to [the witness], on a criminal misdemeanor charge in exchange for information regarding this investigation." At trial, the witness testified that she had received an adjournment in contemplation of dismissal on charges of criminal possession of a controlled substance in the seventh degree, but testified further that she had not received a benefit for the information she provided regarding the charges against defendant. The prosecutor should have corrected that testimony based on the People's discovery response indicating that the adjournment in contemplation of dismissal had in fact been granted in exchange for the witness's information ( see People v. Novoa, 70 N.Y.2d 490, 496-497; People v. LaDolce, 196 A.D.2d 49, 56). "[I]n the face of a prosecutor's knowledge that a witness'[s] testimony denying that a promise of leniency was given is false, he or she has no choice but to correct the misstatement and to elicit the truth" ( People v. Piazza, 48 N.Y.2d 151, 162-163, citing People v. Savvides, 1 N.Y.2d 554, 557). However, defendant failed to object or to seek sanctions when the witness testified differently from what was disclosed in the People's discovery demand Thus, the issue is not preserved for our review ( see People v. Bryant, 298 A.D.2d 845, 846, lv denied 99 N.Y.2d 556). In any event, the error is harmless ( see People v. Steadman, 82 N.Y.2d 1, 8-9).
We further conclude that County Court did not abuse its discretion in its Sandoval and Ventimiglia rulings ( see People v. Hayes, 97 N.Y.2d 203, 207-208; People v. Alvino, 71 N.Y.2d 233, 242). The evidence is legally sufficient to support the conviction, and the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). Defendant received effective assistance of counsel ( see People v. Berroa, 99 N.Y.2d 134, 139), and the sentence is not unduly harsh or severe. Defendant's remaining contentions are not preserved for our review ( see CPL 470.05), and we decline to exercise our power to review them as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).