PEOPLE v. WALL (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25 [2] ).   Contrary to defendant's contention, the showup identification procedure, which was conducted within two hours after the burglary but only minutes after defendant was apprehended near the crime scene, was not unduly suggestive (see People v. Rodriguez, 267 A.D.2d 61, 700 N.Y.S.2d 122, lv. denied 94 N.Y.2d 924, 708 N.Y.S.2d 364, 729 N.E.2d 1163;  People v. McBride, 242 A.D.2d 482, 662 N.Y.S.2d 470, lv. denied 91 N.Y.2d 876, 668 N.Y.S.2d 575, 691 N.E.2d 647, 91 N.Y.2d 943, 671 N.Y.S.2d 723, 694 N.E.2d 892).   We similarly reject the contention of defendant that reversal is required based on a Brady violation, i.e., the People's failure to disclose the photograph taken of him when he was arrested.  “[I]t is well settled that evidence is not deemed to be Brady material when the defendant has knowledge of it,” and here the record establishes that defendant was aware that a photograph was taken of him at the time of his arrest (People v. Rodriguez, 223 A.D.2d 605, 606, 637 N.Y.S.2d 171, lv. denied 88 N.Y.2d 1024, 651 N.Y.S.2d 23, 673 N.E.2d 1250).   Defendant further contends that the evidence of the burglary presented at trial impermissibly varied from the theory of burglary as charged in the indictment.   We reject that contention (cf. People v. Davis, 118 A.D.2d 795, 500 N.Y.S.2d 163).   Finally, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the sentence is not unduly harsh or severe.

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

MEMORANDUM: