PEOPLE v. LUNDY (2008)

 Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25[1] ).   Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motion for a mistrial.   Defendant's assertion that the jurors were improperly influenced by the circumstances surrounding the dismissal of a sworn juror is not supported by the record (see generally People v. Hunt, 39 A.D.3d 961, 963, 833 N.Y.S.2d 731;  People v. Devison, 38 A.D.3d 203, 205, 831 N.Y.S.2d 64, lv. denied 9 N.Y.3d 842, 840 N.Y.S.2d 769, 872 N.E.2d 882), nor is there any indication on the record before us that the court should have conducted individual inquiries of the jurors concerning the possibility of the alleged improper influence (see Devison, 38 A.D.3d at 205, 831 N.Y.S.2d 64).   Contrary to the further contention of defendant, the court properly refused to order the People to provide the criminal history reports of certain prosecution witnesses inasmuch as the record establishes that the People were unaware of the criminal histories of those witnesses and thus were not required to furnish such reports (see CPL 240.45[1][b];  see also People v. Carter, 38 A.D.3d 1291, 1292, 833 N.Y.S.2d 323;  People v. Graham, 289 A.D.2d 417, 734 N.Y.S.2d 243, lv. denied 97 N.Y.2d 754, 742 N.Y.S.2d 615, 769 N.E.2d 361).

 Defendant failed to preserve for our review his contention that the People failed to disclose alleged Brady material (see People v. Little, 23 A.D.3d 1117, 1118, 807 N.Y.S.2d 756, lv. denied 6 N.Y.3d 777, 811 N.Y.S.2d 344, 844 N.E.2d 799;  People v. Martinez, 298 A.D.2d 897, 898, 749 N.Y.S.2d 118, lv. denied 98 N.Y.2d 769, 752 N.Y.S.2d 10, 781 N.E.2d 922, cert. denied 538 U.S. 963, 123 S.Ct. 1752, 155 L.Ed.2d 515, reh. denied 539 U.S. 911, 123 S.Ct. 2266, 156 L.Ed.2d 126) and, in any event, that contention lacks merit.   The information at issue, i.e., the fact that a witness was testifying pursuant to a material witness order, does not constitute Brady material because it is not exculpatory (see generally People v. Arhin, 203 A.D.2d 62, 63, 609 N.Y.S.2d 604, lv. denied 83 N.Y.2d 908, 614 N.Y.S.2d 390, 637 N.E.2d 281).   The court properly charged the jury concerning accessorial liability because the evidence established that defendant, while acting in concert with another, intentionally caused the death of the victim (see People v. Gordon, 277 A.D.2d 1053, 716 N.Y.S.2d 839, lv. denied 96 N.Y.2d 759, 725 N.Y.S.2d 285, 748 N.E.2d 1081;  see generally People v. Rosario, 277 A.D.2d 943, 944, 716 N.Y.S.2d 235, affd. 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112), and the sentence is not unduly harsh or severe.   We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: