PEOPLE v. MADDOX (1998)

 Supreme Court properly denied without a hearing the motion of defendant to vacate the judgment of conviction.   Defendant contends that two computer printouts obtained from the City of Rochester under the Freedom of Information Law after trial constitute newly discovered evidence and that the People's failure to provide the printouts constitutes a Brady violation (see, CPL 440.10[1][g], [h] ).  The printouts set forth the car assignments for the two uniformed police officers who arrested defendant and disclose that the officers, at some point on the day of defendant's arrest, were not assigned to the same car.   Defendant failed, however, to demonstrate that the information could not have been obtained before trial with the exercise of due diligence and that it established the probability that a different verdict would result upon retrial (see, CPL 440.10[1][g];  People v. Beckett, 162 A.D.2d 1000, 1001, 559 N.Y.S.2d 200, lv. denied 76 N.Y.2d 852, 560 N.Y.S.2d 992, 561 N.E.2d 892;  see also, People v. Jackson, 238 A.D.2d 877, 661 N.Y.S.2d 110, lv. denied 90 N.Y.2d 859, 661 N.Y.S.2d 186, 683 N.E.2d 1060;  People v. Willard, 226 A.D.2d 1014, 1020, 641 N.Y.S.2d 896, lv. dismissed 88 N.Y.2d 943, 647 N.Y.S.2d 177, 670 N.E.2d 461).   Further, defendant did not establish that the printout was in the possession of the People at the time of trial.   Even if the People had an obligation to disclose the information, “constitutional error occurs only if the evidence which was not disclosed was material in the sense that ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different’ (United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481), [which is] plainly not the case here” (People v. Chin, 67 N.Y.2d 22, 33, 499 N.Y.S.2d 638, 490 N.E.2d 505;  see, People v. Fyffe, 249 A.D.2d 938, 939, 672 N.Y.S.2d 552).

Order unanimously affirmed.

MEMORANDUM: