PEOPLE v. MCGUIRE (2021)

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 murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [3]). Contrary to defendant's contention, County Court did not err in denying his for-cause challenge to a prospective juror. None of the prospective juror's statements reflected that he had “ ‘a state of mind that [was] likely to preclude him ․ from rendering an impartial verdict based upon the evidence adduced at the trial,’ ” and nothing he said, placed in context, “ ‘cast serious doubt on [his] ability to render an impartial verdict’ ” (People v. Fowler-Graham, 124 A.D.3d 1403, 1403, 999 N.Y.S.2d 663 [4th Dept. 2015], lv denied 25 N.Y.3d 1072, 12 N.Y.S.3d 623, 34 N.E.3d 374 [2015]; see generally People v. Dirschberger, 185 A.D.3d 1224, 1227, 128 N.Y.S.3d 80 [3d Dept. 2020], lv denied 36 N.Y.3d 1056, 141 N.Y.S.3d 758, 165 N.E.3d 684 [2021]).

We likewise reject defendant's contention that the People committed a violation of their Rosario or Brady obligations by failing to disclose to defendant the testimony that two trial witnesses had given during a Darden hearing conducted prior to trial. The People's Rosario and Brady obligations are limited to materials under the People's possession or control (see People v. Santorelli, 95 N.Y.2d 412, 421, 718 N.Y.S.2d 696, 741 N.E.2d 493 [2000]; People v. Kelly, 88 N.Y.2d 248, 251-252, 644 N.Y.S.2d 475, 666 N.E.2d 1348 [1996]). Here, it is undisputed that the People did not possess a copy of the transcript from the Darden hearing, and defendant thus contends that the People's obligations arose from their control over the transcript. The transcript containing the witnesses’ testimony, however, was generated and held by the court, an independent entity over which the People have no authority or control such that an obligation to disclose material held by it could arise (see generally People v. Howard, 87 N.Y.2d 940, 941, 641 N.Y.S.2d 222, 663 N.E.2d 1252 [1996]; People v. Washington, 86 N.Y.2d 189, 192, 630 N.Y.S.2d 693, 654 N.E.2d 967 [1995]; People v. Fishman, 72 N.Y.2d 884, 886, 532 N.Y.S.2d 739, 528 N.E.2d 1212 [1988]; People v. Frank, 107 A.D.2d 1057, 1057, 486 N.Y.S.2d 107 [4th Dept. 1985]).

Defendant correctly concedes that he failed to preserve for our review his contention that, during deliberations, the court erred in allowing the jury to review video exhibits in the courtroom, rather than the jury room. Contrary to defendant's contention, that alleged error is not one that falls within the “very narrow category of so-called ‘mode of proceedings’ errors” that are reviewable even in the absence of a timely objection (People v. Agramonte, 87 N.Y.2d 765, 770, 642 N.Y.S.2d 594, 665 N.E.2d 164 [1996]; see People v. Hasan, 165 A.D.3d 1606, 1607, 86 N.Y.S.3d 360 [4th Dept. 2018], lv denied 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018]), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Contrary to defendant's further contention, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we conclude that the evidence is legally sufficient to establish defendant's identity as the perpetrator (see generally People v. Brown, 92 A.D.3d 1216, 1217, 937 N.Y.S.2d 803 [4th Dept. 2012], lv denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we reject defendant's further contention that the verdict is 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 [1987]).