PEOPLE v. JACKSON

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Norbert JACKSON, Defendant-Appellant.

Decided: March 21, 2001

PRESENT:  PIGOTT, JR., P.J., WISNER, HURLBUTT, KEHOE and LAWTON, JJ. Elizabeth C. Clarke, for defendant-appellant. Patrick H. Fierro, for plaintiff-respondent.

 Defendant was convicted upon a jury verdict of two counts of robbery in the first degree (Penal Law § 160.15[4]), and one count each of burglary in the first degree (Penal Law § 140.30[1]) and criminal possession of a weapon in the second degree (Penal Law former § 265.03), arising out of a home-invasion robbery.   In response to a radio dispatch of a burglary in progress, a police officer arrived at the scene, where he observed a masked man armed with a gun inside the house.   The masked man then fled.   Following a foot chase, defendant was arrested by the officer a short distance away.   Approximately one hour after his arrest, defendant was brought back to the scene of the crime, where two of the victims identified defendant by his clothing.   At trial, one of those two victims testified that she could not identify defendant at two subsequent showups because he was not wearing the same clothes.   Defendant contends that the failure of the witness to identify him at the two subsequent showups constitutes Brady material and that the judgment of conviction must be reversed because the District Attorney failed to give him timely notice of that Brady material.   We disagree.   Even assuming, arguendo, that the witness's failure to identify defendant on the subsequent occasions when defendant was wearing different clothing meets the Brady requirement that the material be exculpatory, we nevertheless conclude that defendant would not be entitled to a new trial based on that alleged violation.  “ ‘[W]hile the People unquestionably have a duty to disclose exculpatory material in their control,’ a defendant's constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witness [ ] or as evidence during his case” (People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349;  see, People v. Kelly, 270 A.D.2d 511, 514, 705 N.Y.S.2d 689, lv. denied 95 N.Y.2d 854, 714 N.Y.S.2d 5, 736 N.E.2d 866;  People v. Tillman, 261 A.D.2d 854, 854-855, 691 N.Y.S.2d 212, lv. denied 93 N.Y.2d 980, 695 N.Y.S.2d 66, 716 N.E.2d 1111).

 There is also no merit to defendant's contentions in the pro se supplemental brief.   County Court properly determined that the police officer had probable cause to believe that defendant had committed a crime in his presence and to arrest defendant a short distance from the scene of the crime following a brief chase (see, CPL 140.10[1];  see generally, People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).   The court also properly determined that the showup identification procedure was not unduly suggestive.   Defendant was apprehended a short distance from the scene of the crime, and the police conducted the showup within approximately one hour of the crime (see, People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;  People v. Fontanez, 278 A.D.2d 933, 718 N.Y.S.2d 541;  People v. Lockwood, 270 A.D.2d 848, 849, 705 N.Y.S.2d 767, lv. denied 94 N.Y.2d 949, 710 N.Y.S.2d 6, 731 N.E.2d 623).   Although defendant was handcuffed and standing between two police officers during the showup, the record supports the determination of the suppression court that the identification procedure was not unduly suggestive (see, People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Fontanez, supra;  People v. Sanabria, 266 A.D.2d 41, 698 N.Y.S.2d 622, lv. denied 94 N.Y.2d 884, 705 N.Y.S.2d 17, 726 N.E.2d 494).

Judgment unanimously affirmed.

MEMORANDUM: