PEOPLE v. ROMERO

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

The PEOPLE of the State of New York, Respondent, v. Ada ROMERO, Defendant-Appellant.

Decided: October 16, 2001

ROSENBERGER, J.P., NARDELLI, ELLERIN, LERNER and SAXE, JJ. Yael V. Levy, for Respondent. Betsy Hutchings, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Lawrence Bernstein, J.), rendered April 13, 1999, convicting defendant, after a jury trial, of assault in the first degree, and sentencing her to a term of 2 1/212 to 5 years, unanimously affirmed.

The court properly exercised its discretion in denying defendant's request for a lengthy mid-trial continuance for the purpose of obtaining records of the complainant's pending New Jersey arrest for prostitution (see, People v. Pitts, 255 A.D.2d 220, 681 N.Y.S.2d 242, lv. denied 93 N.Y.2d 976, 695 N.Y.S.2d 62, 716 N.E.2d 1107).   Contrary to defendant's argument, the People's failure to disclose the pending case at an earlier time did not violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.   The record establishes that despite assurances by the complainant that the case had been dismissed, the prosecutor learned for the first time during jury selection that the case was still pending and immediately supplied this information to defense counsel, a disclosure that was clearly timely under CPL 240.45(1)(c).  Under the circumstances, the knowledge of the complainant's pending out-of-State case should not be imputed to the prosecution (see, People v. Sanchez, 257 A.D.2d 451, 683 N.Y.S.2d 524, lv. denied 93 N.Y.2d 878, 689 N.Y.S.2d 440, 711 N.E.2d 654).   In any event, there was no Brady violation since, in cross-examining the complainant, defendant was able to make extensive use of the available information concerning the New Jersey arrest (see, People v. Cortijo, 70 N.Y.2d 868, 523 N.Y.S.2d 463, 517 N.E.2d 1349), and there is no reasonable possibility that a different verdict would have resulted had defendant been able to obtain the New Jersey records (see, People v. Vilardi, 76 N.Y.2d 67, 556 N.Y.S.2d 518, 555 N.E.2d 915).

We perceive no basis for reduction of sentence.