845 N.Y.S.2d 230 | N.Y. App. Div. | 2007
Judgment, Supreme Court, Bronx County (Edward M. Davidowitz, J.), rendered March 18, 2004, convicting defendant, after a jury trial, of manslaughter in the first degree and two counts of assault in the first degree, and sentencing him to consecutive terms of 25 years, 10 years and 10 years, respectively, unanimously affirmed.
The redacted report concerning the alleged alternative suspect contained the witness’s name (which defendant asserts was too common to be of any use), and no other pedigree information. It also contained the name and phone number of the alternative suspect. The redacted report concerning the vehicle-description witness contained no identifying information. However, each report contained information of potential investigative value with regard to locating the witness to which it pertained.
Despite repeated requests for unredacted copies, the People did not disclose contact information for these witnesses until jury selection began in January 2004, which was approximately one week before opening statements. During trial, defense counsel advised the court that the contact information was stale and that neither witness could be located. The defense had learned the true name of the alleged alternative suspect, but could not locate him either.
There is no basis for reversal under Brady v Maryland (373 US 83 [1963]). Initially, defense counsel was provided with the redacted reports a year and half before trial, and they contained sufficient information to allow the defense to conduct an investigation of the relevant allegations. The fact that the witnesses’ identities and addresses were redacted from those reports did not constitute a suppression of the substance of the witnesses’ statements. Further, there is no reason to believe that earlier disclosure of the information redacted from the reports would have resulted in either witness being available to testify for defendant (see People v Buie, 289 AD2d 140 [2001], lv denied 98 NY2d 695 [2002]; People v Watkins, 286 AD2d 515 [2001], lv denied 97 NY2d 643 [2001]; People v Perry, 266 AD2d
Similarly, defendant was not entitled to introduce the police reports at trial as a Brady remedy. Furthermore, he was not entitled to do so as a matter of due process (see Chambers v Mississippi, 410 US 284 [1973]; People v Robinson, 89 NY2d 648, 654 [1997]). Each report was hearsay, and neither was admissible under any recognized hearsay exception. Even if the alleged alternative suspect could be viewed as having made a declaration against his penal interest, that declaration was made, in turn, to another hearsay declarant. For the reasons previously noted, each report lacked sufficient indicia of reliability, and, even if deemed reliable, had minimal exculpatory value (see e.g. People v Burns, 18 AD3d 397 [2005], affd 6 NY3d 793 [2006]).
The court properly exercised its discretion in declining to permit defendant to cross-examine a detective about the contents of the report concerning the alleged alternative suspect (which had been prepared by a nontestifying detective), and there was no violation of defendant’s right of confrontation or to a fair trial (see Delaware v Van Arsdall, 475 US 673, 678-679 [1986]). Although defendant claims he was not offering this information for its truth, but to show the inadequacy of the police investigation into a possible alternative suspect, it contained multiple layers of hearsay, and depended, for its relevancy, on at least some level being true (see People v Reynoso, 73 NY2d 816, 819 [1988]). In any event, the proposed line of inquiry was not critical to defendant’s defense.
To the extent that defendant is claiming the court should have permitted cross-examination of the detective about the police report concerning the description of the car, or is challenging the prosecutor’s summation, such claims are unpreserved
Defendant’s arguments concerning the court’s jury instructions, including any constitutional claims, are without merit (see People v Farmer, 90 AD2d 106, 113 [1982]).
Finally, the court’s instructions on transferred intent did not require concurrent sentences on the convictions for manslaughter in the first degree and two counts of assault in the first degree, as each firing of the gun constituted a separate act and the material elements of the three crimes did not overlap (see Penal Law § 70.25 [2]; People v Brathwaite, 63 NY2d 839, 843 [1984]; People v Rivera, 262 AD2d 31 [1999], lv denied 93 NY2d 1025 [1999]; People v Saulters, 255 AD2d 896 [1998], lv denied 92 NY2d 1038 [1998]; People v Reyes, 239 AD2d 524 [1997], lv denied 90 NY2d 909 [1997]). Concur—Tom, J.P., Mazzarelli, Sullivan, Gonzalez and McGuire, JJ.