November 21, 2003.
Appeal from a judgment of Monroe County Court (Geraci, Jr., J.), entered March 28, 2001, convicting defendant after a jury trial of, inter alia, robbery in the first degree.
Muldoon Getz, Rochester (Gary Muldoon of Counsel), for Defendant-Appellant.
Hector Valentin, Defendant-Appellant Pro Se.
Howard R. Relin, District Attorney, Rochester (Patrick H. Fierro of Counsel), for Plaintiff-Respondent.
Before: Present: Pine, J.P., Hurlbutt, Kehoe, Lawton, and Hayes, 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 of robbery in the first degree (Penal Law § 160.15) and robbery in the second degree (§ 160.10 ). We agree with defendant that the failure of the People to disclose the prior convictions of the sole eyewitness violated their obligations under Brady v. Maryland ( 373 U.S. 83). The criminal record of a prosecution witness constitutes exculpatory material within the meaning of Brady ( see People v. Pressley, 234 A.D.2d 954 [appeal No. 2], affd 91 N.Y.2d 825; People v. Arac, 297 A.D.2d 560, lv denied 99 N.Y.2d 580; People v. Pimentel, 282 A.D.2d 280, 281, lv denied 96 N.Y.2d 923; People v. Workman, 277 A.D.2d 1029, 1030, lv denied 96 N.Y.2d 764). That rule accords with the principle that the People's disclosure obligations under Brady extend beyond matters that tend to establish defendant's innocence and include material evidence that impeaches "the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence" ( People v. Baxley, 84 N.Y.2d 208, 213; see People v. Steadman, 82 N.Y.2d 1, 7; People v. Hawes, 298 A.D.2d 706, 708, lv denied 99 N.Y.2d 582; see generally United States v. Bagley, 473 U.S. 667, 677-678).
It is not determinative that the prosecutor denied any contemporaneous actual knowledge of the eyewitness's criminal convictions as a consequence of his self-professed standard practice of not checking into such matters. "The requirement that the Brady material be in the People's possession or control * * * has not been interpreted narrowly" ( People v. Santorelli, 95 N.Y.2d 412, 421; see People v. Bryce, 88 N.Y.2d 124, 128; People v. Vilardi, 76 N.Y.2d 67, 73). "A prosecutor must `learn of any favorable evidence known to the others acting on the government's behalf in the case' and promptly disclose any such material evidence to the defendant" ( Santorelli, 95 N.Y.2d at 421; see People v. Wright, 86 N.Y.2d 591, 598; People v. Novoa, 70 N.Y.2d 490, 498). Here, the criminal record of the eyewitness was readily available to the prosecutor and certainly known to other individuals in his office who recently had prosecuted the eyewitness ( see Pressley, 234 A.D.2d at 954). We nonetheless conclude under the circumstances of this case, in which there was no specific request for the exculpatory material in question, that there is no "reasonable probability" that the verdict would have been different had the material been disclosed to the defense and presented to the trier of fact ( Hawes, 298 A.D.2d at 708; see People v. Hale, 286 A.D.2d 987, 988, lv denied 97 N.Y.2d 656; People v. Jones, 272 A.D.2d 930, 931, lv denied 95 N.Y.2d 891; see generally Bryce, 88 N.Y.2d at 126, 128).
We reject the contention that defendant was denied effective assistance of counsel. The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation ( see People v. Davis, 307 A.D.2d 722, 723; see generally People v. Baldi, 54 N.Y.2d 137, 147). Contrary to defendant's further contention, the proof offered by the prosecution at trial did not materially vary from the allegations set forth in the indictment ( see People v. Rivera, 84 N.Y.2d 766, 771; People v. Grega, 72 N.Y.2d 489, 496; People v. Spann, 56 N.Y.2d 469, 472-474; People v. Wynn, 277 A.D.2d 946, lv denied 96 N.Y.2d 765). The evidence is legally sufficient to support the conviction and the verdict is not against the weight of the evidence ( see People v. Crawford, 299 A.D.2d 848, 849, lv denied 99 N.Y.2d 581, 653; People v. Sullivan, 299 A.D.2d 933, 933-934, lv denied 99 N.Y.2d 585; see generally People v. Bleakley, 69 N.Y.2d 490, 495). The sentence is not unduly harsh or severe.
We have considered the contentions raised in defendant's pro se supplemental brief and conclude that they are without merit.