PEOPLE v. McCLAIN (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered May 18, 2006, convicting him of assault in the second degree and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, there was no Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) in this case.  Brady does not require that a prosecutor “supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature” (People v. Doshi, 93 N.Y.2d 499, 506, 693 N.Y.S.2d 87, 715 N.E.2d 113;  see People v. Singh, 5 A.D.3d 403, 771 N.Y.S.2d 908;  People v. Tangney, 306 A.D.2d 360, 760 N.Y.S.2d 660;  People v. Rodriguez, 223 A.D.2d 605, 637 N.Y.S.2d 171;   People v. Deas, 174 A.D.2d 751, 571 N.Y.S.2d 778).   Here, the defendant and defense counsel knew of the possibility that the defendant's arrest was captured by a surveillance camera from a nearby housing project.   Further, the defendant consistently claimed the surveillance videotape would be exculpatory.   Since the defendant knew of the possibility that the tape existed, it was not Brady material even if exculpatory (see People v. Singh, 5 A.D.3d 403, 771 N.Y.S.2d 908;  People v. Tangney, 306 A.D.2d 360, 760 N.Y.S.2d 660).   Further, the prosecutor had no obligation to obtain, by subpoena duces tecum, demanded material which the defendant may himself have obtained (see CPL 240.20[2] ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention does not require reversal.