Opinion
March 28, 2000.
Judgment, Supreme Court, Bronx County (Lawrence Bernstein, J.), rendered May 8, 1998, convicting defendant, after jury trial, of criminal possession of a weapon in the second degree and attempted assault in the first degree, and sentencing him to two concurrent terms of 1+ to 4+ years, unanimously affirmed.
Daniel R. Wanderman for respondent.
Theodore S. Green for defendant-appellant.
ROSENBERGER, J.P., NARDELLI, LERNER, SAXE, FRIEDMAN, JJ.
Defendant, who admitted at trial that he fired a nine millimeter semi-automatic pistol out the window of his apartment, asserts that his conviction should be reversed because of a Rosario andBrady violation (People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866; Brady v. Maryland, 373 U.S. 83); an error by Supreme Court with respect to the People's in limine motion to preclude evidence regarding a prior incident between defendant and the complaining witness; an erroneous justification charge; and a conflict between defendant and his retained attorney. Defendant's claims are without merit.
As to defendant's Rosario claim, the existence of the Rosario material was known to defendant as he specifically requested it pre-trial under the auspices of Brady v. Maryland (supra). The record fails to contain any indication that the court ever ruled on defendant's Brady request and defendant failed to raise the issue again. In view of this, defendant's Rosario claim is not preserved for our review (People v. Graves, 85 N.Y.2d 1024, 1027;People v. Feerick, 241 A.D.2d 126, 137, affd 93_N Y 2d 433; see also,People v. Sutherland, 219 A.D.2d 523, 524, lv denied 87 N.Y.2d 908;People v. Ortiz, 209 A.D.2d 332, 333-334, lv denied 86 N.Y.2d 739). For the same reasons, defendant's Brady claim is not preserved for review. In any event, the Grand Jury minutes and police reports regarding an unrelated incident between defendant and the complainant did not constitute Brady material since defendant obviously was aware of the incident and based his defense upon it (see, People v. Banks, 130 A.D.2d 498, 499).
Concerning the People's in limine motion, the court's ruling was actually favorable to defendant and evidence regarding the prior incident between defendant and complainant was placed before the jury (cf., People v. Miller, 39 N.Y.2d 543, 552).
As to the justification charge, the claimed error is unpreserved since defendant failed to object to it (People v. Gray, 86 N.Y.2d 10, 19). In any event, viewed as a whole, the charge sufficiently conveyed the correct legal standard (cf., People v. Fields, 87 N.Y.2d 821; People v. McLane, 256 A.D.2d 10, lv denied 93 N.Y.2d 901). To the extent that it could be viewed as erroneous, it was favorable to defendant since it essentially eliminated the requirement of objective reasonableness for defendant's belief that he was in danger (see, People v. Goetz, 68 N.Y.2d 96). We further note that justification is not a defense to a charge of criminal possession of a weapon in the second degree (People v. Pons, 68 N.Y.2d 264). Hence, any error in the charge would have no impact on defendant`s conviction for this crime.
Finally, there was no conflict between defendant and his attorney, and, if there was, defendant waived it upon the court's allocution (see, People v. Allen, 88 N.Y.2d 831; People v. Caban, 70 N.Y.2d 695; People v. Gomberg, 38 N.Y.2d 307).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.