People v. Middlebrooks

Dec 30, 2002
Versions:300 A.D.2d 1142
752 N.Y.S.2d 759

—Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered May 19, 2000, convicting defendant after a nonjury trial of assault in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him following a nonjury trial of assault in the first degree (Penal Law § 120.10 [3]), defendant contends that his inculpatory statements made to the police should have been suppressed because they were obtained in violation of his right to counsel (see generally People v Settles, 46 NY2d 154, 161). We disagree. The fact that defendant was represented by counsel on a pending unrelated drug charge for which he had been released from custody did not preclude questioning on the instant assault charge (see People v Burdo, 91 NY2d 146, 149; People v Bing, 76 NY2d 331, 350). Although the codefendant on the drug charge was the complainant on the assault charge, there is no *1143evidence that the two charges were inextricably interwoven, and thus it cannot be said that questioning concerning the assault charge “inevitably involve[d] some potentially incriminating discussion” of the drug charge (People v Townes, 41 NY2d 97, 104).

Contrary to defendant’s further contention, Supreme Court did not err in precluding cross-examination of the complainant regarding her psychiatric history. A defendant has a constitutional right to confront the witnesses against him through cross-examination. With respect to the psychiatric condition of a witness, “the defense is entitled to show that the witness’s capacity to perceive and recall events was impaired by that condition” (People v Baranek, 287 AD2d 74, 78; see People v Brown, 121 AD2d 732, lv denied 68 NY2d 810). Here, however, defendant failed to make the requisite offer of proof that the complainant “had such a history, or that such evidence would bear upon her credibility or otherwise be relevant” (People v Byers, 254 AD2d 494, 494, lv denied 93 NY2d 1043; cf. People v Knowell, 127 AD2d 794, 794-795).

By failing to object to the testimony of the People’s expert, defendant has failed to preserve for our review his contention that the testimony lacked a sufficient foundation and should not have been admitted because the court did not conduct a Frye hearing (see CPL 470.05 [2]; People v Angelo, 88 NY2d 217, 223). In any event, the People’s expert was properly permitted to testify concerning the ignition temperatures of cigarettes and nail polish remover. The People laid a sufficient foundation to establish “that the processes and methods employed by the expert in formulating his * * * opinions adhere [d] to accepted standards of reliability within the field” (People v Wilson, 133 AD2d 179, 183; see People v Brown, 67 NY2d 555, 560, cert denied 479 US 1093), and a Frye hearing was unnecessary because the expert’s testimony did not involve novel scientific evidence (see People v Wernick, 89 NY2d 111, 115-116; see generally Frye v United States, 293 F 1013).

We agree with defendant that the People committed a Brady violation by failing to disclose a plea agreement with the complainant, who as previously noted herein was the codefendant with respect to a drug charge against defendant. Pursuant to that plea agreement, the complainant promised “continued cooperation with [the District Attorney’s Office] in the prosecution of [defendant].” The Brady violation does not require reversal, however, because defendant received the Brady material as part of the Rosario material provided to him and was given a meaningful opportunity to use the exculpatory *1144evidence to cross-examine the complainant (see People v Cortijo, 70 NY2d 868, 870; People v Bonilla, 298 AD2d 871).

Defendant was not denied his statutory right to a speedy trial under CPL 30.30 (1) (a), and the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495). Present — Pigott, Jr., P.J., Pine, Wisner, Kehoe and Burns, JJ.