THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RASHEED MILTON DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of predatory sexual assault (Penal Law § 130.95[1][b];  [3] ).   Defendant contends that the People committed a Brady violation inasmuch as they failed to inform him that one of the investigating police officers who testified at trial had a second job as a private investigator for an agency that is periodically retained by the law firm representing the victim in a personal injury action arising out of the incident underlying the conviction.   We reject that contention.   Even assuming, arguendo, that such information constituted Brady material on the ground that it could be used to impeach the officer's testimony, we conclude that there was no “reasonable possibility that the outcome of the trial would have differed had [that information] been [disclosed]” (People v. Scott, 88 N.Y.2d 888, 891;  see People v. Vilardi, 76 N.Y.2d 67, 77).

Defendant's further contention that he was deprived of a fair trial based on prosecutorial misconduct is not preserved for our review (see CPL 470.05 [2] ) and, in any event, that contention is without merit.  “Reversal on the ground[ ] of prosecutorial misconduct ‘is mandated only when the conduct has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law’ “ (People v. Rubin, 101 A.D.2d 71, 77, lv denied 63 N.Y.2d 711), and that is not the case here.   We reject defendant's contention that he was denied effective assistance of counsel.   Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147).   We have considered defendant's remaining contentions and conclude that they are without merit.

Frances E. Cafarell

Clerk of the Court