PEOPLE v. SEALEY (1997)

 Defendant contends that the People's failure to provide him with the psychiatric records of the victim constitutes a Brady violation (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) and a denial of due process of law.   We disagree.   The People provided defendant with all materials in their possession that indicated that the victim had received psychiatric treatment.   Because the People did not possess the psychiatric records requested by defendant, their failure to produce them is not a Brady violation (see, People v. Diaz, 134 A.D.2d 445, 521 N.Y.S.2d 69, lv. denied 71 N.Y.2d 895, 527 N.Y.S.2d 1004, 523 N.E.2d 311).   The People were under no duty to investigate the psychiatric history of the victim and obtain her psychiatric records (see, People v. Diaz, supra, at 446, 521 N.Y.S.2d 69;  see also, United States v. Bibby, 6th Cir., 752 F.2d 1116, 1125, cert. denied 475 U.S. 1010, 106 S.Ct. 1183, 89 L.Ed.2d 300).   Additionally, defense counsel was given the opportunity to review the victim's medical records from Niagara Falls Memorial Hospital and to place before the jury the fact that the victim suffered from alcohol dependency and alcohol convulsions, had resided in various mental health facilities over the years, had experienced blackouts and hallucinations while under the influence of alcohol, and would become angry if deprived of alcohol.   Under those circumstances, defendant was not denied due process of law (see generally, People v. Arnold, 177 A.D.2d 633, 634-635, 576 N.Y.S.2d 339, lv. denied 79 N.Y.2d 853, 580 N.Y.S.2d 724, 588 N.E.2d 759).

 Defendant further contends that reversal is required because County Court did not conduct the Sandoval hearing and make its Sandoval ruling until immediately before jury selection.   That contention has not been preserved for our review (see, CPL 470.05[2];  People v. Melvin, 223 A.D.2d 604, 636 N.Y.S.2d 827, lv. denied 88 N.Y.2d 851, 644 N.Y.S.2d 697, 667 N.E.2d 347;  People v. Henderson, 212 A.D.2d 1031, 623 N.Y.S.2d 677, lv. denied 86 N.Y.2d 736, 631 N.Y.S.2d 616, 655 N.E.2d 713).   In any event, the trial court did not abuse its discretion in conducting the Sandoval hearing immediately before jury selection (see, People v. Cooper, 120 A.D.2d 957, 502 N.Y.S.2d 843, lv. denied 68 N.Y.2d 768, 506 N.Y.S.2d 1052, 498 N.E.2d 154).   Finally, we conclude that defendant's sentence is neither unduly harsh nor severe.

 Defendant in a pro se supplemental brief contends that his right to a fair trial was violated by the court's failure to sequester the jury during deliberations.   We disagree.   Defendant, who was represented by counsel, agreed to allow the jury to go home, thereby waiving his rights under CPL 310.10 (see, People v. Bello, 190 A.D.2d 1077, 593 N.Y.S.2d 697, affd. 82 N.Y.2d 862, 609 N.Y.S.2d 162, 631 N.E.2d 104;  People v. Paul, 79 N.Y.2d 970, 583 N.Y.S.2d 187, 592 N.E.2d 795;  People v. Webb, 78 N.Y.2d 335, 575 N.Y.S.2d 656, 581 N.E.2d 509).

Judgment unanimously affirmed.

MEMORANDUM: