PEOPLE v. TERRY (2005)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of sodomy in the first degree (Penal Law former § 130.50 [1] ).   We reject the contention of defendant that reversal is required based on an alleged Brady violation, i.e., the People's failure to notify him in a timely manner that an investigation was conducted by Child Protective Services (CPS) with respect to the events underlying the indictment and that the allegations that precipitated the investigation were deemed to be unfounded.   We note at the outset that defendant correctly concedes that the report itself, if indeed one exists, is not Brady material because the prosecutor never possessed it (see People v. Santorelli, 95 N.Y.2d 412, 422-423, 718 N.Y.S.2d 696, 741 N.E.2d 493;  People v. Parker, 283 A.D.2d 973, 725 N.Y.S.2d 250, lv. denied 96 N.Y.2d 905, 730 N.Y.S.2d 803, 756 N.E.2d 91).   We further note that defendant has failed to establish that there was in fact an investigation of the particular incident, and his speculation with respect to the existence of evidence is insufficient to establish a Brady violation (see 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).   In any event, even assuming, arguendo, that there was an investigation, we would nevertheless conclude that no Brady violation occurred herein.   Because defendant was the subject of any CPS investigation that may have occurred, the results of such an investigation were available to him (see Social Services Law § 422[5][a][iv] ).   The People are not required to “supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature” (People v. Doshi, 93 N.Y.2d 499, 506, 693 N.Y.S.2d 87, 715 N.E.2d 113;  see People v. Singleton, 1 A.D.3d 1020, 1021, 767 N.Y.S.2d 364, lv. denied 1 N.Y.3d 580, 775 N.Y.S.2d 796, 807 N.E.2d 909).

 We also reject the contention of defendant that County Court erred in denying his motion to suppress statements made to a police investigator while defendant was a resident at a juvenile detention center.   It is well settled that a minor may waive his rights in the absence of an adult responsible for the minor (see People v. Stephen J.B., 23 N.Y.2d 611, 616-617, 298 N.Y.S.2d 489, 246 N.E.2d 344).   Here, the record supports the court's determination that the investigator took special precautions to assure that defendant understood and validly waived his rights (see People v. Charles M., 286 A.D.2d 942, 943, 731 N.Y.S.2d 307;  People v. Smith, 217 A.D.2d 221, 232-234, 635 N.Y.S.2d 824, lv. denied 87 N.Y.2d 977, 642 N.Y.S.2d 207, 664 N.E.2d 1270).

 Finally, defendant was not eligible for youthful offender status because he was convicted of sodomy in the first degree and there was insufficient evidence of “mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10[3][i];  see People v. Victor J., 283 A.D.2d 205, 206, 724 N.Y.S.2d 162, lv. denied 96 N.Y.2d 942, 733 N.Y.S.2d 383, 759 N.E.2d 382).   In any event, even assuming, arguendo, that defendant was eligible for youthful offender status, we would conclude that the court did not abuse its discretion in denying defendant's request for youthful offender status (see generally People v. Boyce, 2 A.D.3d 984, 987, 769 N.Y.S.2d 620, lv. denied 2 N.Y.3d 796, 781 N.Y.S.2d 295, 814 N.E.2d 467;  People v. Raphael, 109 A.D.2d 899, 487 N.Y.S.2d 93).

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

MEMORANDUM: