PEOPLE v. REESE (2005)

 On appeal from a judgment convicting him upon a jury verdict of, inter alia, murder in the first degree (Penal Law § 125.27[1] [a] [vii] ), defendant contends that County Court failed to conduct a sufficient inquiry into his complaints concerning assigned counsel.   We reject that contention.   Even assuming, arguendo, that the complaints “suggest[ed] a serious possibility of good cause for substitution” requiring a need for further inquiry (People v. Frayer, 215 A.D.2d 862, 863, 627 N.Y.S.2d 107, lv. denied 86 N.Y.2d 794, 632 N.Y.S.2d 507, 656 N.E.2d 606), we conclude that the court made a sufficient inquiry into defendant's complaints concerning the alleged lack of communication between defendant and defense counsel.   The court “repeatedly allowed defendant to air his concerns about defense counsel, and after listening to them reasonably concluded that defendant's vague and generic objections had no merit or substance” (People v. Linares, 2 N.Y.3d 507, 511, 780 N.Y.S.2d 529, 813 N.E.2d 609). We likewise conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Defendant further contends that the People violated his statutory and constitutional rights by denying his requests for preindictment disclosure.   To the extent that defendant contends that CPL 240.80 authorizes such disclosure, we note that defendant raises that contention for the first time on appeal and thus has failed to preserve it for our review (see CPL 470.05[2];  see also People v. Barrett, 231 A.D.2d 806, 647 N.Y.S.2d 311).   In any event, it is well settled that defendants, including those who potentially face capital charges, have “no right to discovery prior to indictment,” statutory or otherwise (People v. Walker, 15 A.D.3d 902, 903, 789 N.Y.S.2d 780, lv. denied 4 N.Y.3d 836, 796 N.Y.S.2d 591, 829 N.E.2d 684;  see People v. Gudz, 18 A.D.3d 11, 13 n. 1, 793 N.Y.S.2d 556;  Matter of Brown v. Appelman, 241 A.D.2d 279, 283-285, 672 N.Y.S.2d 373;  Matter of Hynes v. Cirigliano, 180 A.D.2d 659, 659-660, 579 N.Y.S.2d 171, lv. denied 79 N.Y.2d 757, 583 N.Y.S.2d 193, 592 N.E.2d 801).   Indeed, “there is no general constitutional right to discovery in criminal cases” (Matter of Miller v. Schwartz, 72 N.Y.2d 869, 870, 532 N.Y.S.2d 354, 528 N.E.2d 507, rearg. denied 72 N.Y.2d 953, 533 N.Y.S.2d 60, 529 N.E.2d 428), and “[t]here is simply no heightened right to preindictment discovery in capital cases” (Brown, 241 A.D.2d at 285, 672 N.Y.S.2d 373).

 We reject the further contention of defendant that he was entitled to preindictment discovery of Brady material.  “[T]he law ․ appears to be settled ․ [that] ․ Brady material must be disclosed in time for its effective use at trial ․ or at a plea proceeding” (United States v. Coppa, 267 F.3d 132, 135 [emphasis added];  see United States v. Smith, 824 F.Supp. 420, 424;  see also People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349).  Brady concerns exculpatory evidence that is relevant either to actual guilt or to punishment (see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215), and the concerns of Brady are not implicated during grand jury proceedings.   Rather, grand jury proceedings require only legally sufficient evidence that a crime was committed and legally sufficient evidence that the accused committed the crime;  such proceedings do not concern actual guilt or punishment (see generally People v. Lancaster, 69 N.Y.2d 20, 25, 511 N.Y.S.2d 559, 503 N.E.2d 990, cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697).   Thus, defendants are not entitled to preindictment discovery of Brady material (see People v. Gervais, 195 Misc.2d 129, 134-136, 756 N.Y.S.2d 390;  see also Gudz, 18 A.D.3d at 13 n. 1, 793 N.Y.S.2d 556;  Smith, 824 F.Supp. at 424).

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

MEMORANDUM: