People v. Clarke

Sep 30, 1997
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Judgment unanimously affirmed. Memorandum: Defendant moved to set aside the verdict pursuant to CPL 330.30 on the ground that the People breached their obligations to disclose Brady material concerning a prosecution witness (see, People v Baxley, 84 NY2d 208, 213, rearg dismissed 86 NY2d 886) and to make available the testimony of two other prosecution witnesses before the Grand Jury in another proceeding against defendant (see, CPL 240.45 [1] [a]; People v Eldridge, 222 AD2d 1109). County Court properly denied that motion. The record supports the court’s determination that, although a Brady violation occurred, there is no reasonable possibility that the violation contributed to the verdict (see, People v Vilardi, 76 NY2d 67, 77; People v Pressley [appeal No. 2], 234 AD2d 954, lv granted 89 NY2d 1039). We also agree with the court’s conclusion that the statements of the two witnesses before the Grand Jury were “duplicative equivalents of statements previously turned over to the defense” (People v Consolazio, 40 NY2d 446, 454).

Defendant failed to preserve for our review his contentions that the court erred in denying his motion to suppress physical evidence without conducting a hearing (see, CPL 470.05 [2]; People v Williams, 143 AD2d 162, 163) and that the evidence of intent is insufficient to support the murder conviction (see, People v Gray, 86 NY2d 10, 19). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). Upon our review of the record, we conclude that the verdict is not contrary to the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). (Appeal from Judgment of Onondaga County Court, McCarthy, J.—Murder, 2nd Degree.) Present—Denman, P. J., Green, Hayes, Balio and Fallon, JJ.