PEOPLE v. ROJAS

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Steven ROJAS, Defendant-Appellant.

Decided: May 18, 2006

BUCKLEY, P.J., MAZZARELLI, FRIEDMAN, SWEENY, McGUIRE, JJ. Laura R. Johnson, The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell, New York (Kavita Kumar of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Alexis Pimentel of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J. on dismissal motion;  Michael A. Gross, J. at suppression hearing;  Barbara F. Newman, J. at jury trial and sentence), rendered May 3, 2004, convicting defendant of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/212 to 7 years, unanimously affirmed.

 Although counsel's CPL 190.50(5) motion to dismiss the indictment for an alleged violation of defendant's right to testify before the grand jury was untimely, this did not deprive defendant of effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   In the first place, an attorney's failure to secure a defendant's right to testify before the grand jury, without more, does not establish ineffective assistance of counsel or require reversal (see People v. Wiggins, 89 N.Y.2d 872, 653 N.Y.S.2d 91, 675 N.E.2d 845 [1996] ).   Furthermore, in addition to denying the motion as untimely, the court also denied it on the merits, and that ruling was correct.   Despite an initial failure to produce defendant to testify, the People thereafter provided him with a reasonable opportunity to appear before the grand jury, and his ultimate failure to testify primarily resulted from his own actions (see e.g. People v. Quinones, 280 A.D.2d 559, 720 N.Y.S.2d 531 [2001], appeal withdrawn 96 N.Y.2d 805, 726 N.Y.S.2d 383, 750 N.E.2d 85 [2001] ).   Finally, even if counsel made a timely motion, the court granted it, and defendant testified at a new grand jury proceeding, there is no indication that his testimony would have affected the outcome of the proceedings (see People v. Harrison, 304 A.D.2d 376, 758 N.Y.S.2d 300 [2003], lv. denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627 [2003] ).  “All that his appearance before the grand jury would do would be to give the prosecutor a preview of the defense” (Jenkins v. New York State, 2003 WL 21804846, *2, 2003 U.S. Dist. LEXIS 13596, *5 [S.D.N.Y., Aug. 6, 2003] ).

The court properly denied defendant's suppression motion.   The record supports the hearing court's finding that the lineup identification was not unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).   Defendant's reliance on trial testimony in challenging the suppression ruling is misplaced (People v. Abrew, 95 N.Y.2d 806, 808, 710 N.Y.S.2d 833, 732 N.E.2d 940 [2000] ).   The court properly exercised its discretion in imposing reasonable limits on defendant's cross-examination during the hearing, and it accorded defendant sufficient scope in which to explore the description of the perpetrator given by the victim.

 The trial court properly declined to impose any sanctions for the People's failure to produce certain items claimed by defendant to be Rosario material (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 [1961], cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 [1961] ).   The tape and Sprint report of a 911 call, in which a nontestifying civilian reported the crime, were not Rosario material, even though the non-witness presumably had relayed information from a person who testified, because these items were not written or recorded statements by a testifying witness (see e.g. People v. Brock, 293 A.D.2d 294, 740 N.Y.S.2d 54 [2002], lv. denied 99 N.Y.2d 556, 754 N.Y.S.2d 208, 784 N.E.2d 81 [2002];  Matter of Christopher W., 202 A.D.2d 305, 609 N.Y.S.2d 194 [1994];  People v. Williams, 165 A.D.2d 839, 560 N.Y.S.2d 220 [1990], affd. 78 N.Y.2d 1087, 578 N.Y.S.2d 870, 586 N.E.2d 53 [1991] ).   The tape of a testifying transit employee's call to her Transit Authority command center was not Rosario material because the People were not in possession of it and the Transit Authority is not a prosecutorial or law enforcement agency, regardless of the extent to which it may cooperate with the police (see People v. Kelly, 88 N.Y.2d 248, 644 N.Y.S.2d 475, 666 N.E.2d 1348 [1996];  People v. Howard, 87 N.Y.2d 940, 641 N.Y.S.2d 222, 663 N.E.2d 1252 [1996];  People v. Washington, 86 N.Y.2d 189, 630 N.Y.S.2d 693, 654 N.E.2d 967 [1995] ).

 The court's delivery of an adverse inference instruction to the jury as a sanction for the loss of a portion of an investigating officer's notes was a proper exercise of discretion (see People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134 [1988] ), and preclusion of the officer's testimony was unwarranted.

The court properly exercised its discretion in denying defendant's mistrial motion and in instead striking, with curative instructions, police testimony that defendant had said he had been smoking crack (see e.g. People v. Wilkins, 16 A.D.3d 217, 790 N.Y.S.2d 666 [2005], lv. denied 5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 [2005] ).   After denying the mistrial, the court, at defendant's request, withdrew the curative instruction and reinstated the offending testimony, upon which defendant then cross-examined the officer.   This permitted the People to comment on this evidence on summation in response to defendant's summation arguments (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).