PEOPLE v. STERN (2000)

Order, Supreme Court, New York County (Frederic Berman, J.), entered January 7, 1997, which denied defendant's motion pursuant to CPL 440.10 to vacate a judgment of the same court (Alfred Kleiman, J.), rendered January 29, 1990, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

Defendant's motion to vacate judgment was properly denied.   The ballistics and serology documents concerning tests conducted on a certain vehicle found two days after the murder of the victim were not Brady material (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) because they were not in the People's possession (People v. Vilardi, 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 555 N.E.2d 915).   On the contrary, the documents were in the possession of the Office of the Chief Medical Examiner, which is not a law enforcement agency (People v. Washington, 86 N.Y.2d 189, 630 N.Y.S.2d 693, 654 N.E.2d 967), and thus possession of the documents at issue cannot be attributed to the People (People v. Wright, 225 A.D.2d 430, 639 N.Y.S.2d 361, lv. denied 88 N.Y.2d 1026, 651 N.Y.S.2d 25, 673 N.E.2d 1252).   Likewise, there was no violation of the People's disclosure obligations under CPL 240.20 (id.).   Furthermore, the documents were not exculpatory, and were actually consistent with the prosecution's case.   In any event, they did not contradict defendant's tape-recorded admissions that he orchestrated the murder of which he was convicted (see, People v. Stern, 226 A.D.2d 238, 641 N.Y.S.2d 248, lv. denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355).   Defendant's claim that disclosure of the documents might have led to exculpatory evidence rests entirely on speculation.

The remaining branch of defendant's motion, alleging improper redactions of tape-recorded conversations admitted at defendant's trial and disclosed to him well in advance of trial, are procedurally defective (CPL 440.10[3][a],[c];  440.30[4] ) and without merit.

MEMORANDUM DECISION.