PEOPLE v. WOOD (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered November 13, 2002, convicting him of murder in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his videotaped statement to law enforcement officials.

ORDERED that the judgment is affirmed.

 The defendant contends that the hearing court erred in denying that branch of his omnibus motion which was to suppress his videotaped statement to law enforcement officials because it was made subsequent to his invocation of the right to counsel.   While this issue was not raised before the hearing court, the claimed deprivation of that constitutional right may be raised for the first time on appeal (see People v. Kinchen, 60 N.Y.2d 772, 773, 469 N.Y.S.2d 680, 457 N.E.2d 786;  People v. Samuels, 49 N.Y.2d 218, 221, 424 N.Y.S.2d 892, 400 N.E.2d 1344;  cf. People v. Delacruz, 13 A.D.3d 642, 786 N.Y.S.2d 321).   During the custodial interrogation, the defendant told police “I think I should get a lawyer,” and subsequently made the videotaped statement at issue.   While the hearing court erred in failing to suppress the defendant's videotaped statement, that error was harmless beyond a reasonable doubt in light of the overwhelming evidence of the defendant's guilt (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 The defendant failed to preserve his specific arguments regarding the late disclosure of Rosario material (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) and Brady material (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215;  CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Rodriguez, 281 A.D.2d 644, 645, 722 N.Y.S.2d 257), namely, that had he received timely disclosure of his accomplice's prior statement, he would not have introduced into evidence his accomplice's affidavit.   In any event, the People's delay in providing Rosario material does not warrant reversal of the defendant's conviction as there is no showing that the defendant suffered any actual prejudice from the delay (see CPL 240.75;  People v. Myron, 28 A.D.3d 681, 683, 814 N.Y.S.2d 198;  People v. Poladian, 2 A.D.3d 755, 768 N.Y.S.2d 646;  People v. Page, 296 A.D.2d 427, 427-428, 745 N.Y.S.2d 193).   The material was available for use at trial upon its disclosure and was, in fact, used by the defendant (see People v. Chaffee, 30 A.D.3d 763, 764, 816 N.Y.S.2d 615).   The defendant also failed to show under Brady a reasonable possibility that the result of the trial would have been different but for the timing of the disclosure (see People v. Scott, 88 N.Y.2d 888, 890-891, 644 N.Y.S.2d 913, 667 N.E.2d 923;  People v. Vilardi, 76 N.Y.2d 67, 77-78, 556 N.Y.S.2d 518, 555 N.E.2d 915;  People v. Rodriguez, supra at 644, 722 N.Y.S.2d 257).

The defendant's remaining contentions are without merit.