PEOPLE v. NANCE

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Alex NANCE, Defendant-Appellant.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., WISNER, KEHOE, LAWTON, AND HAYES, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Jessamine I. Jackson of Counsel), for Defendant-Appellant. Alex Nance, Defendant-Appellant Pro Se. Frank J. Clark, District Attorney, Buffalo (Paul J. Williams, III, of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him of two counts of murder in the second degree (Penal Law § 125.25[1], [3] ) and one count each of robbery in the first degree (§ 160.15[1] ) and intimidating a victim or witness in the third degree (§ 215.15[1] ).   The verdict is not against the weight of the evidence on the issue of defendant's identity as one of the perpetrators (see People v. Goree, 309 A.D.2d 1204, 764 N.Y.S.2d 760;  People v. Quinney, 305 A.D.2d 1044, 760 N.Y.S.2d 786, lv. denied 100 N.Y.2d 586, 764 N.Y.S.2d 396, 796 N.E.2d 488;  People v. Owens, 275 A.D.2d 905, 906, 713 N.Y.S.2d 388, lv. denied 95 N.Y.2d 937, 721 N.Y.S.2d 613, 744 N.E.2d 149, 95 N.Y.2d 939, 721 N.Y.S.2d 616, 744 N.E.2d 152;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), nor is it against the weight of the evidence on the issues whether defendant stole the victim's money and intimidated a witness by threatening her with bodily harm (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Although County Court was without authority to allow two television stations to videotape or broadcast the trial (see Matter of Santiago v. Bristol, 273 A.D.2d 813, 814, 709 N.Y.S.2d 724, appeal dismissed 95 N.Y.2d 847, 713 N.Y.S.2d 520, 735 N.E.2d 1286, lv. denied 95 N.Y.2d 848, 713 N.Y.S.2d 520, 735 N.E.2d 1286;  see also Civil Rights Law § 52;  22 NYCRR 29.1 [a] ), we cannot conclude that defendant was thereby deprived of a fair trial absent a showing of actual prejudice (see Chandler v. Florida, 449 U.S. 560, 581-582, 101 S.Ct. 802, 66 L.Ed.2d 740;  see also People v. Burdo, 256 A.D.2d 737, 738-739, 682 N.Y.S.2d 681).   Defendant has failed “to show that the media's coverage of his case * * * compromised the ability of the jury to judge him fairly” or “had an adverse impact on the trial participants sufficient to constitute a denial of due process” (Chandler, 449 U.S. at 581, 101 S.Ct. 802).

 There is no merit to defendant's contention concerning an alleged Rosario violation with respect to the prior statement of a witness (see CPL 240.45[1] [a] ).   There is no evidence that the trial prosecutor ever had possession or control of the witness's prior statement, which had been given to a private investigator and an attorney for a third party (see generally People v. Kelly, 88 N.Y.2d 248, 251-252, 644 N.Y.S.2d 475, 666 N.E.2d 1348).

 Defendant was not denied effective assistance of counsel.   The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Davis, 307 A.D.2d 722, 723, 762 N.Y.S.2d 327, lv. denied 100 N.Y.2d 619, 767 N.Y.S.2d 402, 799 N.E.2d 625).

The sentence is not unduly harsh or severe.   We have reviewed the contentions raised in defendant's pro se supplemental brief and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: