PEOPLE v. REDDICK

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

The PEOPLE of the State of New York, Respondent, v. George REDDICK, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  GORSKI, J.P., SMITH, CENTRA, FAHEY, AND PINE, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

 On appeal from a judgment convicting him upon a jury verdict of, inter alia, rape in the second degree (Penal Law § 130.30 [1] ), defendant contends that County Court erred in denying his application for subpoenas duces tecum with respect to the victim's school and social services records.   We reject that contention inasmuch as, at the time of the application, defendant failed to set forth a sufficient “factual predicate to support the contention that the documents sought in the subpoena[s] will bear relevant and exculpatory evidence” (People v. Bagley, 279 A.D.2d 426, 426, 720 N.Y.S.2d 454, lv. denied 96 N.Y.2d 711, 727 N.Y.S.2d 696, 751 N.E.2d 944;  see generally Matter of Constantine v. Leto, 157 A.D.2d 376, 378, 557 N.Y.S.2d 611, affd. for the reasons stated 77 N.Y.2d 975, 571 N.Y.S.2d 906, 575 N.E.2d 392;  People v. Gissendanner, 48 N.Y.2d 543, 551, 423 N.Y.S.2d 893, 399 N.E.2d 924).   Here, although defense counsel contended that the records might contain evidence of a prior false accusation by the victim against defendant, “the application was supported solely by speculation in an attorney's [letter], without even an indication of the basis for that speculation.   Accordingly, [the c]ourt did not abuse its discretion in denying [that part of] the application” (People v. Bush, 14 A.D.3d 804, 805, 788 N.Y.S.2d 258, lv. denied 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325).   The other contentions raised by defense counsel in the application concerned information that would be used to impeach the victim's general credibility and thus the remainder of the application was also properly denied (see e.g. People v. Radtke, 219 A.D.2d 739, 631 N.Y.S.2d 763, lv. denied 87 N.Y.2d 924, 641 N.Y.S.2d 606, 664 N.E.2d 517;  People v. Scott, 212 A.D.2d 477, 623 N.Y.S.2d 212, lv. denied 85 N.Y.2d 969, 975, 977, 980, 629 N.Y.S.2d 729, 735, 737, 740, 653 N.E.2d 625, 631, 633, 636;  cf. People v. Thurston, 209 A.D.2d 976, 619 N.Y.S.2d 465, lv. denied 85 N.Y.2d 915, 627 N.Y.S.2d 338, 650 N.E.2d 1340;  see generally Gissendanner, 48 N.Y.2d at 548, 423 N.Y.S.2d 893, 399 N.E.2d 924).   Contrary to defendant's further contention, the victim's social services records were not within the custody or control of the People and thus do not constitute Rosario or Brady material (see Matter of Sabol v. People, 203 A.D.2d 369, 610 N.Y.S.2d 93;  see generally People v. Tucker, 171 Misc.2d 1, 10, 650 N.Y.S.2d 928).

 We further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  “Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, the appellate court must give ‘[g]reat deference ․ [to the] fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor’ ” (People v. Harris, 15 A.D.3d 966, 967, 788 N.Y.S.2d 745, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679, quoting Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  see People v. Catlin, 41 A.D.3d 1199, 838 N.Y.S.2d 284).   We see no basis to disturb the jury's determination of credibility.

 To the extent that defendant contends that he was denied a fair trial based on the prosecutor's failure to disclose exculpatory evidence, we conclude that defendant waived that contention by withdrawing his CPL 330.30 motion raising that contention (see People v. Abney, 10 A.D.3d 617, 781 N.Y.S.2d 456, lv. denied 4 N.Y.3d 760, 792 N.Y.S.2d 4, 825 N.E.2d 136;  People v. Hollis, 309 A.D.2d 764, 765-766, 765 N.Y.S.2d 67, lv. dismissed 1 N.Y.3d 597, 776 N.Y.S.2d 229, 808 N.E.2d 365;  People v. Baez, 290 A.D.2d 372, 737 N.Y.S.2d 338, lv. denied 98 N.Y.2d 635, 744 N.Y.S.2d 764, 771 N.E.2d 837).   Certain of the remaining instances of prosecutorial misconduct are not preserved for our review (see People v. Harris, 1 A.D.3d 881, 882, 767 N.Y.S.2d 725, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919) and, in any event, the remaining instances, including those that are preserved for our review, do not amount to conduct that was “so egregious or prejudicial as to deny defendant his right to a fair trial” (People v. Dexter, 259 A.D.2d 952, 954, 688 N.Y.S.2d 289, affd. 94 N.Y.2d 847, 703 N.Y.S.2d 64, 724 N.E.2d 759;  cf. People v. Mott, 94 A.D.2d 415, 418, 465 N.Y.S.2d 307).

Finally, we conclude that, despite defense counsel's initial failure to demand exculpatory evidence in the omnibus motion, defendant ultimately received meaningful representation (see generally People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

MEMORANDUM: