641 N.Y.S.2d 222 | NY | 1996
The People of the State of New York, Respondent,
v.
Clifford Howard, Appellant.
Court of Appeals of the State of New York.
John A. Cirando, Syracuse, Ivette Iza Zenner and Jacqueline B. Jones for appellant.
James B. Vargason, District Attorney of Cayuga County, Auburn (Jon E. Budelmann and Karl J. Sleight of counsel), for respondent.
Richard A. Brown, District Attorney of Queens County, pro se, Kew Gardens (Steven J. Chananie and Linda Cantoni of counsel), and Robert M. Morgenthau, District Attorney of New York County, pro se, New York City (Patrick J. Hynes of counsel), amici curiae.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
*941MEMORANDUM.
The order of the Appellate Division should be affirmed.
The statements of witnesses made during defendant's prison disciplinary proceeding were not within the People's control and therefore did not constitute Rosario material. The statements in question were embodied in transcripts that were generated and held by the State Department of Correctional Services. That agency has no duty to share such material with the District Attorney for the county in which the underlying conduct occurred. Further, although Correction Department facilities are at the end of the State's law enforcement chain, the Correction Department itself is, in most respects, an administrative rather than a law enforcement agency. Under these circumstances, the People had no obligation to attempt to locate and gain possession of the material for the purpose of turning them over to the defense (see, People v Washington, 86 N.Y.2d 189, 192-193; People v Flynn, 79 N.Y.2d 779, 882).
Defendant's other preserved contentions are lacking in merit. Contrary to defendant's argument, there was support in the Wade hearing record for the Appellate Division's finding that the inmate-eyewitness's in-court identification had an independent source. Thus, that identification testimony was *942 properly admitted at trial, regardless of whether or not the pretrial photo array that had been shown to the witness was unduly suggestive. Although the admission of testimony by a correction officer regarding that pretrial identification procedure was impermissible bolstering, the error was harmless in light of the clear and strong evidence of defendant's guilt (see, People v Mobley, 56 N.Y.2d 584). Finally, the circumstantial evidence offered at trial was, when viewed in a light most favorable to the People, legally sufficient to establish defendant's guilt beyond a reasonable doubt (see, People v Norman, 85 N.Y.2d 609, 620-622; People v Contes, 60 N.Y.2d 620). Defendant's related claim that the guilty verdict was against the weight of the evidence is beyond our limited power to review questions of law (see, People v Bleakley, 69 N.Y.2d 490, 493).
Order affirmed in a memorandum.
