PEOPLE v. LITTLE (2005)

 Defendant appeals from a judgment convicting him after a jury trial of, inter alia, burglary in the first degree (Penal Law § 140.30 [3] ), robbery in the first degree (§ 160.15[3] ), and robbery in the second degree (§ 160.10[1] ).   Defendant failed to preserve for our review his contention that the People erred in failing to disclose Brady or Rosario material (see People v. Seavy, 16 A.D.3d 1130, 1131, 791 N.Y.S.2d 249).   In any event, that alleged error would not require reversal because defendant failed to establish that such material exists (see People v. Mellerson, 15 A.D.3d 964, 965, 788 N.Y.S.2d 746, lv. denied 5 N.Y.3d 791, 801 N.Y.S.2d 812, 835 N.E.2d 672;  People v. McKinney, 302 A.D.2d 993, 996, 755 N.Y.S.2d 541, lv. denied 100 N.Y.2d 584, 764 N.Y.S.2d 395, 796 N.E.2d 487;  People v. Bryant, 298 A.D.2d 845, 846, 748 N.Y.S.2d 628, lv. denied 99 N.Y.2d 556, 754 N.Y.S.2d 208, 784 N.E.2d 81).   Defendant also failed to preserve for our review his contention that the identification evidence is legally insufficient as a matter of law and thus that the conviction is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   That contention is without merit in any event, because the eyewitness was unwavering in her testimony that defendant was one of the perpetrators (see People v. Quinney, 305 A.D.2d 1044, 760 N.Y.S.2d 786, lv. denied 100 N.Y.2d 586, 764 N.Y.S.2d 396, 796 N.E.2d 488;  People v. Spirles, 294 A.D.2d 810, 810-811, 742 N.Y.S.2d 457, lv. denied 98 N.Y.2d 713, 749 N.Y.S.2d 11, 778 N.E.2d 562, 99 N.Y.2d 540, 752 N.Y.S.2d 601, 782 N.E.2d 579).

 We reject the contention of defendant that Supreme Court abused its discretion in precluding him from cross-examining a prosecution witness with respect to a prior bad act of sexual misconduct.  “[T]he extent to which a party should be allowed to use prior convictions and bad acts to impeach the credibility of a witness is a matter that is generally left to the discretion of the trial court” (People v. Lucius, 289 A.D.2d 963, 964, 737 N.Y.S.2d 717, lv. denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840;  see People v. Rivera, 256 A.D.2d 1098, 1098-1099, 685 N.Y.S.2d 164, lv. denied 93 N.Y.2d 977, 695 N.Y.S.2d 63, 716 N.E.2d 1108).   Here, there was an insufficient factual basis for that line of questioning, and the alleged incident occurred when the witness was 12 years old.   In addition, the witness, who we note was not the People's central witness, had already testified to prior convictions and bad acts that concerned his credibility.

 Defendant did not oppose the People's motion to amend the indictment, and thus his contentions on appeal that count five of the indictment was invalid and that the court erred in granting the motion are not preserved for our review (see generally People v. Pike, 254 A.D.2d 727, 728, 681 N.Y.S.2d 706).   In any event, the court properly granted the motion, pursuant to which the People sought to correct a typographical error.   The amendment did not change the theory of the prosecution or prejudice defendant (see CPL 200.70 [1];  People v. Hendrix, 292 A.D.2d 815, 816, 738 N.Y.S.2d 920, lv. denied 98 N.Y.2d 651, 745 N.Y.S.2d 510, 772 N.E.2d 613;  Pike, 254 A.D.2d at 728, 681 N.Y.S.2d 706).   Defendant received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: