PEOPLE v. MALAVE (2000)

Judgment, Supreme Court, Bronx County (Richard Price, J.), rendered March 21, 1995, convicting defendant, after a jury trial, of murder in the second degree, criminal possession of a weapon in the second degree and criminal impersonation in the first degree, and sentencing him to concurrent terms of 25 years to life and 5 to 15 years, consecutive to a term of 1 1/313 to 4 years, unanimously affirmed.

 The court properly exercised its discretion in declining to replace a sworn juror based on her innocuous encounter with an Assistant District Attorney having no connection to this prosecution, whom the juror recognized as a college friend.   The juror had been unaware that her friend had joined the District Attorney's office, and assured the court that the encounter would not affect her impartiality (see, People v. Provenzano, 50 N.Y.2d 420, 429 N.Y.S.2d 562, 407 N.E.2d 408;  People v. Rodriguez, 242 A.D.2d 475, 662 N.Y.S.2d 478, lv. denied 91 N.Y.2d 879, 668 N.Y.S.2d 577, 691 N.E.2d 649).

 On the existing record, viewed in totality, we conclude that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see also, People v. Sullivan, 153 A.D.2d 223, 550 N.Y.S.2d 358, lv. denied, 75 N.Y.2d 925, 555 N.Y.S.2d 43, 554 N.E.2d 80).   There is no indication that counsel's style of trying the case prevented defendant from receiving a fair trial.

Defendant's claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would conclude that it rests on speculation (see, People v. McKee, 269 A.D.2d 792, 703 N.Y.S.2d 447;  People v. Parkinson, 268 A.D.2d 792, 702 N.Y.S.2d 216;  People v. Serrando, 184 A.D.2d 1094, 583 N.Y.S.2d 245, lv. denied 80 N.Y.2d 837, 587 N.Y.S.2d 922, 600 N.E.2d 649).

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.