PEOPLE v. MONROE (2005)

Appeal from a judgment of the County Court of Tompkins County (Rowley, J.), rendered June 13, 2003, upon a verdict convicting defendant of the crimes of unlawful imprisonment in the first degree, assault in the second degree, assault in the third degree and aggravated harassment in the second degree.

Defendant was charged with multiple crimes in connection with a fight between her, two codefendants and the victim outside a gas station.   After the proof had been closed in defendant's jury trial, defendant became aware that several months after the events on trial the victim had been involved in two arguments with the attendant at another gas station.   Defendant moved for a mistrial, alleging a Brady violation based on the People's failure to turn over a police report related to the second incident.   County Court denied the motion, but took the attendant's testimony outside the jury's presence and permitted the defense to reopen the proof.   Defense counsel cross-examined the victim regarding these incidents, although the court limited the use of this information against the victim only as to her credibility and for putting her own interests above those of society, not for her propensity to engage in arguments.   After defendant was convicted of multiple counts, she moved pursuant to CPL 330.30 to set aside the verdict based on, among other things, the alleged Brady violation.   County Court denied the motion and sentenced defendant to an aggregate term of six months in jail and five years' probation.   Defendant appeals.

 Defendant is not entitled to a reversal despite the People's Brady violation.   The subject material was Brady material because it affected the credibility of a key prosecution witness, and failure to disclose it constituted a Brady violation (see People v. Baxley, 84 N.Y.2d 208, 213, 616 N.Y.S.2d 7, 639 N.E.2d 746 [1994];  People v. Hawes, 298 A.D.2d 706, 708, 750 N.Y.S.2d 132 [2002], lv. denied 99 N.Y.2d 582, 755 N.Y.S.2d 718, 785 N.E.2d 740 [2003] ).   Defendant was given a meaningful opportunity to use the exculpatory information, however, when County Court permitted the defense to recall the prosecution witness immediately prior to summations for the purpose of impeachment (see People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987];  People v. Johnson, 303 A.D.2d 208, 208-209, 756 N.Y.S.2d 548 [2003], lv. denied 100 N.Y.2d 595, 766 N.Y.S.2d 171, 798 N.E.2d 355 [2003];  People v. Tessitore, 178 A.D.2d 763, 764, 577 N.Y.S.2d 680 [1991], lv. denied 79 N.Y.2d 1008, 584 N.Y.S.2d 463, 594 N.E.2d 957 [1992] ).   This procedure placed defendant in an arguably better position in that the final proof submitted to the jury was testimony that cast doubt upon the character of the chief prosecution witness.

 In any event, where a defendant makes only a general demand for disclosure, evidence is only deemed material, thus requiring a new trial, if there is a reasonable probability that the result would have been different had the evidence been disclosed (see People v. Bryce, 88 N.Y.2d 124, 128, 643 N.Y.S.2d 516, 666 N.E.2d 221 [1996];  People v. Hawes, supra at 708, 750 N.Y.S.2d 132;  People v. Yusufi, 247 A.D.2d 648, 650, 669 N.Y.S.2d 66 [1998], lv. denied 92 N.Y.2d 863, 677 N.Y.S.2d 94, 699 N.E.2d 454 [1998] ).   Because this information was admissible only to impeach the victim, not as proof of her propensity to start altercations, and defendant in fact effectively used the material, there is no reasonable probability that earlier disclosure of this police report would have affected the verdict.

ORDERED that the judgment is affirmed.

KANE, J.

MERCURE, J.P., SPAIN, CARPINELLO and ROSE, JJ., concur.